NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543,
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errors.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–1271

															_________________

															TIMOTHY K. MOORE, in his official capacity as
SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
et al., PETITIONERS v. REBECCA HARPER, et al.

															on writ of certiorari to the supreme court of
north carolina

															[June 27, 2023]

															Chief Justice Roberts delivered the opinion of
the Court.

															Several groups of plaintiffs challenged North
Carolina’s congressional districting map as an impermissible
partisan gerrymander. The plaintiffs brought claims under North
Carolina’s Constitution, which provides that “[a]ll elections shall
be free.” Art. I, §10. Relying on that provision, as well as the
State Constitution’s equal protection, free speech, and free
assembly clauses, the North Carolina Supreme Court found in favor
of the plaintiffs and struck down the legislature’s map. The Court
concluded that North Carolina’s Legislature deliberately drew the
State’s congressional map to favor Republican candidates.

															In drawing the State’s congressional map, North
Carolina’s Legislature exercised authority under the Elections
Clause of the Federal Constitution, which expressly requires “the
Legislature” of each State to prescribe “[t]he Times, Places and
Manner of ” federal elections. Art. I, §4, cl. 1. We
decide today whether that Clause vests state legislatures with
authority to set rules governing federal elections free from
restrictions imposed under state law.

															I

															The Elections Clause provides: “The Times,
Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing
Senators.” Ibid . The Clause “imposes” on state legislatures
the “duty” to prescribe rules governing federal elections. Arizona v. Inter Tribal Council of Ariz., Inc. , 570 U.S.
1 , 8 (2013). It also guards “against the possibility that a
State would refuse to provide for the election of representatives”
by authorizing Congress to prescribe its own rules. Ibid. A

															The 2020 decennial census showed that North
Carolina’s population had increased by nearly one million people,
entitling the State to an additional seat in its federal
congressional delegation. U. S. Census Bureau, 2020 Census
Apportionment Results (2021) (Table A). Following those results,
North Carolina’s General Assembly set out to redraw the State’s
congressional districts. North Carolina League of Conservation
Voters, Inc. v. Representative Destin Hall , 21 CVS
015426 etc. (Super. Ct. Wake Cty., N. C., Dec. 3, 2021), App.
to Pet. for Cert. 260a–261a, rev’d and remanded on other grounds, Harper v. Hall , 380 N. C. 317, 868 S.E.2d 499
(2022) ( Harper I ). The General Assembly also drafted
new maps for the State’s legislative districts, including the State
House and the State Senate. Id. , at 328–329, 868 S. E.
2d, at 513. In November 2021, the Assembly enacted three new maps,
each passed along party lines. Id. , at 329, 868 S. E.
2d, at 513; see N. C. Gen. Stat. Ann. §120–1 (2021) (State
Senate); §120–2 (State House); §163–201 (U. S. House of
Representatives).

															Shortly after the new maps became law, several
groups of plaintiffs—including the North Carolina League of
Conservation Voters, Common Cause, and individual voters—sued in
state court. The plaintiffs asserted that each map constituted an
impermissible partisan gerrymander in violation of the North
Carolina Constitution. Harper I , 380 N. C., at 329–330,
868 S. E. 2d, at 513–514.[ 1 ] At trial before a three-judge panel of the Wake County
Superior Court, the plaintiffs presented expert testimony and other
evidence to support their claims that North Carolina’s General
Assembly drew state legislative and federal congressional maps to
favor Republican candidates. Id. , at 332, 868 S. E. 2d,
at 515. The trial court agreed, finding that the General Assembly’s
2021 congressional districting map was “a partisan outlier
intentionally and carefully designed to maximize Republican
advantage in North Carolina’s Con- gressional delegation.” Id. , at 345, 868 S. E. 2d, at 522 (internal quotation
marks omitted). But the court denied relief, reasoning that the
partisan gerrymandering claims “amounted to political questions
that are nonjusticiable under the North Carolina Constitution.” Id. , at 348, 868 S. E. 2d, at 524.

															The North Carolina Supreme Court reversed,
holding that the legislative defendants violated state law “beyond
a reasonable doubt” by enacting maps that constituted partisan
gerrymanders. Id. , at 353, 868 S. E. 2d, at 528. It
also rejected the trial court’s conclusion that partisan
gerrymandering claims present a nonjusticiable political question. Ibid. The Court acknowledged our decision in Rucho v. Common Cause , which held “that partisan gerrymandering
claims present political questions beyond the reach of the federal
courts.” 588 U. S. ___, ___ (2019) (slip op., at 30); see Harper I , 380 N. C., at 360–361, 868 S. E. 2d, at
532–533. But “simply because the Supreme Court has concluded
partisan gerrymandering claims are nonjusticiable in federal
courts,” the court explained, “it does not follow that they are
nonjusticiable in North Carolina courts.” Id. , at 361, 868
S. E. 2d, at 533. The State Supreme Court also rejected the
argument that the Elections Clause in the Federal Constitution
vests exclusive and independent authority in state legislatures to
draw congressional maps. Id. , at 390–391, 868 S. E. 2d,
at 551–552.

															After holding that the 2021 districting maps
“substantially infringe upon plaintiffs’ fundamental right to equal
voting power,” the Court struck down the maps and remanded the case
to the trial “court to oversee the redrawing of the maps by the
General Assembly or, if necessary, by the court.” Id. , at
403, 868 S. E. 2d, at 559. The Court entered judgment on
February 15, 2022. Harper v. Hall , No. 413PA21,
App. to Pet. for Cert. 306–309. Two days later, the General
Assembly adopted a remedial congressional redistricting plan. See
2022 N. C. Sess. Laws p. 3, §2. But the trial court rejected
that plan and adopted in its place interim maps developed by
several Special Masters for use in the 2022 North Carolina
congressional elections. North Carolina League of Conservation
Voters, Inc. v. Representative Destin Hall , 21 CVS
015426 etc. (Super. Ct. Wake Cty., N. C., Feb. 23, 2022), App.
to Pet. for Cert. 278a–279a, aff ’d in part, rev’d in part,
and remanded, Harper v. Hall , 383 N. C. 89, 881
S.E.2d 156 (2022) ( Harper II ).

															On February 25, 2022, the legislative defendants
filed an emergency application in this Court, citing the Elections
Clause and requesting a stay of the North Carolina Supreme Court’s
decision. We declined to issue emergency relief but later granted
certiorari. 597 U. S. ___ (2022).

															B

															Following our grant of certiorari, the North
Carolina Supreme Court heard an appeal concerning the trial court’s
remedial order. In December 2022, the Court issued a decision
affirming in part, reversing in part, and remanding the case. As
relevant, it agreed with the trial court’s determination that the
General Assembly’s remedial congressional plan “fell short” of the
requirements set forth in Harper I . Harper II , 383
N. C., at 125, 881 S. E. 2d, at 181.

															The legislative defendants sought rehearing,
requesting that the North Carolina Supreme Court “withdraw” its
remedial opinion in Harper II . Pet. for Rehearing in Harper v. Hall , No. 413PA21, p. 25 (Jan.
20, 2023) (Pet. for Rehearing). They also asked the Court to
“overrule” its decision in Harper I , although they conceded
that doing so would not “negate the force of its order striking
down the 2021 plans.” Pet. for Rehearing 24. The North Carolina
Supreme Court granted rehearing in Harper II , and we ordered
the parties to submit supplemental briefing concerning our
jurisdiction over this case in light of that decision.

															Following the parties’ submission of
supplemental briefs in this Court, the North Carolina Supreme Court
issued a decision granting the requests made by the legislative
defendants. The Court withdrew its opinion in Harper II ,
concerning the remedial maps, and “overruled” its decision in Harper I . See Harper v. Hall , ___ N. C.
___, 886 S.E.2d 393 (2023). Relying on our decision in Rucho and on a renewed look at the constitutional provisions at issue,
the Court repudiated Harper I ’s conclusion that
partisan gerrymandering claims are justiciable under the North
Carolina Constitution. See ___ N. C., at ___, 886 S. E.
2d, at 431.

															The North Carolina Supreme Court dismissed the
plaintiffs’ claims with prejudice. Id. , at ___, 886
S. E. 2d, at 401. But it did not reinstate the 2021
congressional plans that Harper I had struck down under the
North Carolina Constitution. ___ N. C., at ___, 886 S. E.
2d, at 446–448. Instead, the Court provided the General Assembly
with the “opportunity to enact a new set of legislative and
congressional redistricting plans, guided by federal law, the
objective constraints in Article II, Sections 3 and 5 [of the North
Carolina Constitution], and this opinion.” Id. , at ___, 886
S. E. 2d, at 448. The Court did not revisit Harper
I ’s conclusion that the Federal Elections Clause does not
shield state legislatures from review by state courts for
compliance with state constitutional provisions. ___ N. C., at
___, 886 S. E. 2d, at 422 (“The General Assembly exercises
[redistricting] authority subject to the express limitations in our
constitution and in federal law.”). We invited the parties to
submit additional supplemental briefs addressing the effect of the
Court’s decision on our jurisdiction.

															II

															Before turning to the merits, we must
“determine as a threshold matter that we have jurisdiction.” Goodyear Atomic Corp. v. Miller , 486 U.S.
174 , 178 (1988). The Constitution provides for our jurisdiction
over “Cases” and “Controversies.” Art. III, §2. That
constitutional requirement ensures that the parties before us
retain a “personal stake” in the litigation. Baker v. Carr , 369 U.S.
186 , 204 (1962). As “[a] corollary to this case-or-controversy
requirement,” there must exist a dispute “at all stages of review,
not merely at the time the complaint is filed.” Genesis
HealthCare Corp. v. Symczyk , 569 U.S.
66 , 71 (2013) (internal quotation marks omitted). Mootness
doctrine “addresses whether an intervening circumstance has
deprived the plaintiff of a personal stake in the outcome of the
lawsuit.” West Virginia v. EPA , 597 U. S. ___,
___ (2022) (slip op., at 15) (alterations and internal quotation
marks omitted).

															The North Carolina Supreme Court’s decision to
withdraw Harper II and overrule Harper I does not
moot this case. The plaintiffs here sought to enjoin the use of the
2021 plans enacted by the legislative defendants. Harper I granted that relief, and in doing so rejected the Elections Clause
defense at issue before us. 380 N. C., at 403, 868 S. E.
2d, at 559. Prior to both the appeal and rehearing proceedings in Harper II , the North Carolina Supreme Court had already
entered the judgment and issued the mandate in Harper I . See
App. to Pet. for Cert. 306–309. And the time during which the
defendants could seek rehearing as to that judgment had long since
passed. See N. C. Rule App. Proc. 31(a) (2023) (requiring
that a rehearing petition be brought within 15 days of the issuance
of the mandate). Recognizing this reality, the legislative
defendants did not ask the North Carolina Supreme Court to disturb
the judgment in Harper I as part of the rehearing
proceedings. They instead acknowledged that they would remain bound
by Harper I ’s decision enjoining the use of the 2021
plans. See Pet. for Rehearing 24 (“[O]verruling Harper I will not negate the force of its order striking down the 2021
plans.”).

															The North Carolina Supreme Court “overruled” Harper I , thereby granting the specific relief requested by
the legislative defendants. As a result, partisan gerrymandering
claims are no longer justiciable under the State’s Constitution. Harper , ___ N. C., at ___, 886 S. E. 2d, at 449.
But although the defendants may now draw new congressional maps,
they agree that the North Carolina Supreme Court overruled only the
“ reasoning of Harper I ” and did not
“disturb . . . its judgment
nor . . . alter the presently operative
statutes of North Carolina.” Second Supp. Letter Brief for
Petitioners 3. In other words, although partisan gerrymandering
claims are no longer viable under the North Carolina Constitution,
the North Carolina Supreme Court has done nothing to alter the
effect of the judgment in Harper I enjoining the use of the
2021 maps. As a result, the legislative defendants’ path to
complete relief runs through this Court. Were we to reverse the
judgment in Harper I —a step not taken by the North Carolina
Supreme Court—the 2021 plans enacted by the legislative defendants
would again take effect. The parties accordingly continue to have a
“personal stake in the ultimate disposition of the lawsuit.” Chafin v. Chafin , 568 U.S.
165 , 172 (2013) (internal quotation marks omitted).

															A North Carolina statute with specific
application to this proceeding confirms that the controversy before
us remains live. Under state law, if “the United States Supreme
Court . . . reverses” the decision in Harper
I , the 2021 maps will again become “effective.” 2022 N. C.
Sess. Laws p. 10, §2. We have previously found such trigger
provisions—in North Carolina, no less—sufficient to avoid mootness
under Article III. See Hunt v. Cromartie , 526 U.S.
541 , 546, n. 1 (1999) (“Because the State’s 1998 law
provides that the State will revert to the 1997 districting plan
upon a favorable decision of this
Court . . . this case is not moot.”).

															We also have jurisdiction to review the judgment
in Harper I under 28 U. S. C. §1257(a). That
statute provides for this Court’s exercise of jurisdiction over
“[f]inal judgments or decrees rendered by the highest court of a
State in which a decision could be had.” Ibid. We have,
however, “recurringly encountered situations in which the highest
court of a State has finally determined the federal issue present
in a particular case, but in which there are further proceedings in
the lower state courts to come.” Cox Broadcasting Corp. v. Cohn , 420 U.S.
469 , 477 (1975). Cox Broadcasting delineated “at least
four categories of such cases in which the Court has treated the
decision on the federal issue as a final judgment for the purposes
of 28 U. S. C. §1257,” despite “additional proceedings
anticipated in the lower state courts.” Ibid. As relevant,
the second category includes those
“cases . . . in which the federal issue,
finally decided by the highest court in the State, will survive and
require decision regardless of the outcome of future statecourt
proceedings.” Id. , at 480. Harper I fits within this second category
of cases described in Cox Broadcasting . By striking down the
2021 congressional plans enacted by the General Assembly, Harper
I “finally decided” the “federal issue” whether the Elections
Clause insulates state legislatures from review by state courts for
compliance with state law. See 380 N. C., at 390–391, 868
S. E. 2d, at 551–552. That issue both has survived and
requires decision because subsequent proceedings have neither
altered Harper I ’s analysis of the federal issue nor
negated the effect of its judgment striking down the 2021 plans. In
its decision “overruling” Harper I , the North Carolina
Supreme Court in fact reaffirmed that it retains the authority to
review congressional districting plans for compliance with state
law. Harper , ___ N. C., at ___, 886 S. E. 2d, at
422.

															That the North Carolina Supreme Court overruled Harper I does not affect the judgment in that case for
purposes of §1257(a). “[T]he res judicata consequences of a final,
unappealed judgment on the merits” are not “altered by the fact
that the judgment may have been wrong or rested on a legal
principle subsequently overruled in another case.” Federated
Department Stores, Inc. v. Moitie , 452 U.S.
394 , 398 (1981). The North Carolina Supreme Court has said much
the same. East Carolina Lumber Co. v. West , 247
N. C. 699, 701, 102 S. E. 2d, 248, 249 (1958) (“An
erroneous or irregular judgment binds the parties thereto until
corrected in a proper manner.”). That Court did not purport to
alter or amend in any way the judgment in Harper I . In
short, the record before us shows that Harper I “finally
decided” the Elections Clause issue, which has survived subsequent
proceedings in the North Carolina Supreme Court such that it
continues to “require decision” by this Court. Cox
Broadcasting , 420 U. S., at 480.

															Justice Thomas sees it differently. He correctly
observes that the North Carolina Supreme Court has now dismissed
the plaintiffs’ claims with prejudice. He posits, therefore, that
the legislative defendants “are not injured by the judgment of Harper I .” Post , at 5 (dissenting opinion). But the
record before us belies that notion. Harper I enjoined the
use of the 2021 maps in subsequent elections in North Carolina.
Well after the time for seeking rehearing as to that judgment
passed, the legislative defendants instead sought rehearing with
respect to Harper II , a distinct decision concerning
remedies. The defendants steadfastly maintained in rehearing
proceedings before the North Carolina Supreme Court that
“overruling Harper I [would] not negate the force of its
order striking down the 2021 plans.” Pet. for Rehearing 24; see
also Legislative Defendants’ Supp. Brief on Rehearing in Harper v. Hall , No. 413PA21–2, p. 56
(N. C., Feb. 17, 2023) (“[T]he Court’s dictate that the 2021
plans may not be used ‘in any future elections’ would not be
vacated.”). With those concessions on the record, the North
Carolina Supreme Court issued its decision “overruling” Harper
I , and—by contrast—“withdraw[ing]” its decision in Harper
II . Harper , ___ N. C., at ___, 886 S. E. 2d,
at 449. And mirroring their representations before the North
Carolina Supreme Court, the legislative defendants now maintain in
this Court that they continue to remain bound by the judgment in Harper I .

															In an effort to cast doubt on these consistent
representations by the injured party before us, Justice Thomas
contends that the legislative defendants have already received
complete relief because nothing now prevents the implementation of
the 2021 maps. Post , at 15 (dissenting opinion). For the
reasons stated above, that would come as a surprise to both the
legislative defendants and the North Carolina Supreme Court. The
dissent also emphasizes that several of the plaintiffs contest our
jurisdiction. Post , at 6. But that has been their position
from the very beginning, and it did not prevent our granting
certiorari. The concessions offered by the legislative defendants
as part of the rehearing proceedings, the recent opinion issued by
the North Carolina Supreme Court, and the legislative defendants’
briefing in this Court all tell the same story: Harper I continues to enjoin the use of the 2021 maps. Following the
dissent’s logic and dismissing this case as moot would foreclose
the one path to full relief available to the legislative
defendants: A decision by this Court reversing the judgment in Harper I .

															This Court has before it a judgment issued by a
State’s highest court that adjudicates a federal constitutional
issue. The defendants did not ask the North Carolina Supreme Court
to vacate that judgment, that court did not purport to do so, and
the defendants now concede that they remain bound by it. Cox
Broadcasting considered our exercise of jurisdiction where the
“federal issue . . . will survive and require
decision regardless of the outcome of future state-court
proceedings.” 420 U. S., at 480. Unlike cases in which we must
anticipate what the future might hold, we now know the resolution
of the anticipated state court proceedings. The record shows that Harper I finally decided the Elections Clause question, the
judgment in that case continues to bind the parties before us, and
the 2021 congressional maps would again take effect in North
Carolina were we to reverse. Accordingly, we have jurisdiction
under both Article III and §1257(a).

															III

															The question on the merits is whether the
Elections Clause insulates state legislatures from review by state
courts for compliance with state law.

															Since early in our Nation’s history, courts have
recognized their duty to evaluate the constitutionality of
legislative acts. We announced our responsibility to review laws
that are alleged to violate the Federal Constitution in Marbury v. Madison , proclaiming that “[i]t is
emphatically the province and duty of the judicial department to
say what the law is.” 1 Cranch 137, 177 (1803). Marbury confronted and rejected the argument that Congress may exceed
constitutional limits on the exercise of its authority. “Certainly
all those who have framed written constitutions,” we reasoned,
“contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government
must be, that an act of the legislature, repugnant to the
constitution, is void.” Ibid. Marbury proclaimed our authority to
invalidate laws that violate the Federal Constitution, but it did
not fashion this concept out of whole cloth. Before the
Constitutional Convention convened in the summer of 1787, a number
of state courts had already moved “in isolated but important cases
to impose restraints on what the legislatures were enacting as
law.” G. Wood, The Creation of the American Republic 1776–1787,
pp. 454–455 (1969). Although judicial review emerged
cautiously, it matured throughout the founding era. These state
court decisions provided a model for James Madison, Alexander
Hamilton, and others who would later defend the principle of
judicial review.

															In the 1786 case Trevett v. Weeden , for example, lawyer James Varnum challenged a Rhode
Island statute on the ground that it failed to provide the right to
a jury trial. Although Rhode Island lacked a written constitution,
Varnum argued that the State nevertheless had a constitution
reflecting the basic historical rights of the English. And, he
contended, the courts must honor “the principles of the
constitution in preference to any acts of the General Assembly.” J.
Varnum, The Case, Trevett v. Weeden, reprinted in 1
B. Schwartz, The Bill of Rights: A Documentary History 424 (1971).
Varnum won, to the dismay of the State’s legislature, which
replaced four of the five judges involved. W. Treanor, Judicial
Review Before Marbury , 58 Stan. L. Rev. 455, 478
(2005). His arguments were published as a pamphlet, which “may well
have been the most prominent discussion of judicial review at the
time of the Philadelphia Constitutional Convention.” Id. , at
477.

															The North Carolina Supreme Court played its own
part in establishing judicial review. In Bayard v. Singleton , the court considered the constitutionality of a
1785 Act by the State’s General Assembly that prevented British
loyalists from challenging property seizures before a jury. 1 Mort.
48 (1787). The court held the Act “abrogated and without any
effect,” for “it was clear” that the legislature could not pass an
Act that “could by any means repeal or alter the constitution.” Id. , at 50. Otherwise, the legislature “would at the same
instant of time, destroy their own existence as a Legislature, and
dissolve the government thereby established.” Ibid. James
Iredell, who would later serve as an inaugural Justice of this
Court, penned at the time an open letter “To the Public” expounding
a robust concept of judicial review. 2 Life and Correspondence of
James Iredell 145 (1846). “[T]he power of the Assembly,” he wrote,
“is limited and defined by the constitution.” Id. , at 146.
The legislature, after all, “is a creature of the
constitution.” Ibid. North Carolina and Rhode Island did not stand
alone. See, e.g. , Holmes v. Walton (N. J.
1780), described in A. Scott, Holmes vs. Walton: The
New Jersey Precedent, 4 Am. Hist. Rev. 456 (1899); State v. Parkhurst , 9 N. J. L. 427, 444 (1802) (citing Holmes as holding that a statute providing for a six-person
jury was “unconstitutional”). All told, “[s]tate courts in at least
seven states invalidated state or local laws under their State
constitutions before 1787,” which “laid the foundation for judicial
review.” J. Sutton, 51 Imperfect Solutions 13 (2018).

															The Framers recognized state decisions
exercising judicial review at the Constitutional Convention of
1787. On July 17, James Madison spoke in favor of a federal council
of revision that could negate laws passed by the States. He lauded
the Rhode Island judges “who refused to execute an unconstitutional
law,” lamenting that the State’s legislature then “displaced” them
to substitute others “who would be willing instruments of the
wicked & arbitrary plans of their masters.” 2 Records of the
Federal Convention of 1787, p. 28 (M. Farrand ed. 1911). A
week later, Madison extolled as one of the key virtues of a
constitutional system that “[a] law violating a constitution
established by the people themselves, would be considered by the
Judges as null & void.” Id. , at 93. Elbridge Gerry, a
delegate from Massachusetts, also spoke in favor of judicial
review. (Known for drawing a contorted legislative district that
looked like a salamander, Gerry later became the namesake for the
“gerrymander.”) At the Convention, he noted that “[i]n some States
the Judges had [actually] set aside laws as being agst. the
Constitution.” 1 id ., at 97 (alteration in original by James
Madison). Such judicial review, he noted, was met “with general
approbation.” Ibid. Writings in defense of the proposed Constitution
echoed these comments. In the Federalist Papers, Alexander Hamilton
maintained that “courts of justice” have the “duty . . .
to declare all acts contrary to the manifest tenor of the
Constitution void.” The Federalist No. 78, p. 466 (C. Rossiter ed.
1961). “[T]his doctrine” of judicial review, he also wrote, was
“equally applicable to most if not all the State governments.” Id. , No. 81, at 482.

															State cases, debates at the Convention, and
writings defending the Constitution all advanced the concept of
judicial review. And in the years immediately following
ratification, courts grew assured of their power to void laws
incompatible with constitutional provisions. See Treanor, 58 Stan.
L. Rev., at 473, 497–498. The idea that courts may review
legislative action was so “long and well established” by the time
we decided Marbury in 1803 that Chief Justice Marshall
referred to judicial review as “one of the fundamental principles
of our society.” 1 Cranch, at 176–177.

															IV

															We are asked to decide whether the Elections
Clause carves out an exception to this basic principle. We hold
that it does not. The Elections Clause does not insulate state
legislatures from the ordinary exercise of state judicial
review.

															A

															We first considered the interplay between
state constitutional provisions and a state legislature’s exercise
of authority under the Elections Clause in Ohio ex rel.
Davis v. Hildebrant , 241 U.S.
565 (1916). There, we examined the application to the Elections
Clause of a provision of the Ohio Constitution permitting the
State’s voters “to approve or disapprove by popular vote any law
enacted by the General Assembly.” Id. , at 566. In 1915, the
Ohio General Assembly drew new congressional districts, which the
State’s voters then rejected through such a popular referendum.
Asked to disregard the referendum, the Ohio Supreme Court refused,
explaining that the Elections Clause—while “conferring the power
therein defined upon the various state legislatures”—did not
preclude subjecting legislative Acts under the Clause to “a popular
vote.” State ex rel. Davis v. Hildebrant , 94
Ohio St. 154, 163, 114 N.E. 55, 58 (1916).

															We unanimously affirmed, rejecting as “plainly
without substance” the contention that “to include the referendum
within state legislative power for the purpose of apportionment is
repugnant to §4 of Article I [the Elections Clause].” Hildebrant , 241 U. S., at 569; see also Hawke v. Smith , 253 U.S.
221 , 230–231 (1920) (describing Hildebrant as holding
that “the referendum provision of the state constitution when
applied to a law redistricting the State with a view to
representation in Congress was not unconstitutional”). Smiley v. Holm , decided 16 years
after Hildebrant , considered the effect of a Governor’s veto
of a state redistricting plan. 285 U.S.
355 , 361 (1932). Following the 15th decennial census in 1930,
Minnesota lost one seat in its federal congressional delegation.
The State’s legislature divided Minnesota’s then nine congressional
districts in 1931 and sent its Act to the Governor for his
approval. The Governor vetoed the plan pursuant to his authority
under the State’s Constitution. But the Minnesota Secretary of
State nevertheless began to implement the legislature’s map for
upcoming elections. A citizen sued, contending that the
legislature’s map “was a nullity in that, after the Governor’s
veto, it was not repassed by the legislature as required by law.” Id. , at 362. The Minnesota Supreme Court disagreed. In its
view, “the authority so given by” the Elections Clause “is
unrestricted, unlimited, and absolute.” State ex rel.
Smiley v. Holm , 184 Minn. 228, 242, 238 N.W. 494, 501
(1931). The Elections Clause, it held, conferred upon the
legislature “the exclusive right to redistrict” such that its
actions were “beyond the reach of the judiciary.” Id. , at
243, 238 N. W., at 501.

															We unanimously reversed. A state legislature’s
“exercise of . . . authority” under the Elections Clause,
we held, “must be in accordance with the method which the State has
prescribed for legislative enactments.” Smiley , 285
U. S., at 367. Nowhere in the Federal Constitution could we
find “provision of an attempt to endow the legislature of the State
with power to enact laws in any manner other than that in which the
constitution of the State has provided that laws shall be enacted.” Id. , at 368. Smiley relied on founding-era provisions,
constitutional structure, and historical practice, each of which we
found persuasive. Two States at the time of the founding provided a
veto power, restrictions that were “well known.” Ibid. (citing provisions in Massachusetts and New York). Subjecting state
legislatures to such a limitation “was no more incongruous with the
grant of legislative authority to regulate congressional elections
than the fact that the Congress in making its regulations under the
same provision would be subject to the veto power of the
President.” Ibid. ; see also Wesberry v. Sanders , 376 U.S.
1 , 6 (1964) (Congress does not have “exclusive authority” under
the Elections Clause, independent of other federal constitutional
provisions). And “long and continuous interpretation” as evidenced
by “the established practice in the states” provided further
support. Smiley , 285 U. S., at 369. We noted that many
state constitutions had adopted provisions allowing for executive
vetoes, “and that the uniform practice . . . has been to
provide for congressional districts by the enactment of statutes
with the participation of the Governor wherever the state
constitution provided for such participation.” Id. , at
370.

															This Court recently reinforced the teachings of Hildebrant and Smiley in a case considering the
constitutionality of an Arizona ballot initiative. Voters “amended
Arizona’s Constitution to remove redistricting authority from the
Arizona Legislature and vest that authority in an independent
commission.” Arizona State Legislature v. Arizona
Independent Redistricting Comm’n , 576 U.S. 787, 792 (2015). The
Arizona Legislature challenged a congressional map adopted by the
commission, arguing that the Elections “Clause precludes resort to
an independent commission . . . to accomplish
redistricting.” Ibid. A divided Court rejected that
argument. The majority reasoned that dictionaries of “the founding
era . . . capaciously define[d] the word
‘legislature,’ ” id. , at 813–814, and concluded that
the people of Arizona retained the authority to create “an
alternative legislative process” by vesting the lawmaking power of
redistricting in an independent commission, id. , at 817. The
Court ruled, in short, that although the Elections Clause expressly
refers to the “Legislature,” it does not preclude a State from
vesting congressional redistricting authority in a body other than
the elected group of officials who ordinarily exercise lawmaking
power. States, the Court explained, “retain autonomy to establish
their own governmental processes.” Id. , at 816.

															The significant point for present purposes is
that the Court in Arizona State Legislature recognized that
whatever authority was responsible for redistricting, that entity
remained subject to constraints set forth in the State
Constitution. The Court embraced the core principle espoused in Hildebrant and Smiley “that redistricting is a
legislative function, to be performed in accordance with the
State’s prescriptions for lawmaking, which may include the
referendum and the Governor’s veto.” 576 U. S., at 808; see
also id. , at 840–841 (Roberts, C. J., dissenting)
(recognizing that Hildebrant and Smiley support the
imposition of “some constraints on the legislature”). The Court
dismissed the argument that the Elections Clause divests state
constitutions of the power to enforce checks against the exercise
of legislative power: “Nothing in [the Elections] Clause instructs,
nor has this Court ever held, that a state legislature may
prescribe regulations on the time, place, and manner of holding
federal elections in defiance of provisions of the State’s
constitution.” 576 U. S., at 817–818 (majority opinion).

															The reasoning we unanimously embraced in Smiley commands our continued respect: A state legislature
may not “create congressional districts independently of ”
requirements imposed “by the state constitution with respect to the
enactment of laws.” 285 U. S., at 373.

															B

															The legislative defendants and the dissent
both contend that, because the Federal Constitution gives state
legislatures the power to regulate congressional elections, only that Constitution can restrain the exercise of that power.
Brief for Petitioners 22; post , at 17 (opinion of Thomas,
J.). The legislative defendants cite for support Federalist
No. 78, which explains that the wielding of legislative power
is constrained by “the tenor of the commission under which it is
exercised.” The Federalist No. 78, at 466; see Tr. of Oral Arg.
4.

															This argument simply ignores the precedent just
described. Hildebrant , Smiley , and Arizona State
Legislature each rejected the contention that the Elections
Clause vests state legislatures with exclusive and independent
authority when setting the rules governing federal elections.

															The argument advanced by the defendants and the
dissent also does not account for the Framers’ understanding that
when legislatures make laws, they are bound by the provisions of
the very documents that give them life. Legislatures, the Framers
recognized, “are the mere creatures of the State Constitutions, and
cannot be greater than their creators.” 2 Farrand 88. “What are
Legislatures? Creatures of the Constitution; they owe their
existence to the Constitution: they derive their powers from the
Constitution: It is their commission; and, therefore, all their
acts must be conformable to it, or else they will be void.” Vanhorne’s Lessee v. Dorrance , 2 Dall. 304, 308 (Pa.
1795). Marbury confirmed this understanding, 1 Cranch, at
176–177, and nothing in the text of the Elections Clause undermines
it. When a state legislature carries out its constitutional power
to prescribe rules regulating federal elections, the “commission
under which” it exercises authority is two-fold. The Federalist No.
78, at 467. The legislature acts both as a lawmaking body created
and bound by its state constitution, and as the entity assigned
particular authority by the Federal Constitution. Both
constitutions restrain the legislature’s exercise of power.

															Turning to our precedents, the defendants quote
from our analysis of the Electors Clause in McPherson v. Blacker , 146 U.S. 1 (1892). That Clause—similar to the Elections Clause—provides that
“Each State shall appoint, in such Manner as the Legislature
thereof may direct, a [specified] Number of Electors.”
Art. II, §1, cl. 2. McPherson considered a
challenge to the Michigan Legislature’s decision to allocate the
State’s electoral votes among the individual congressional
districts, rather than to the State as a whole. We upheld that
decision, explaining that in choosing Presidential electors, the
Clause “leaves it to the legislature exclusively to define the
method of effecting the object.” 146 U. S., at 27.

															Our decision in McPherson , however, had
nothing to do with any conflict between provisions of the Michigan
Constitution and action by the State’s legislature—the issue we
confront today. McPherson instead considered whether
Michigan’s Legislature itself directly violated the Electors Clause
(by taking from the “State” the power to appoint and vesting that
power in separate districts), the Fourteenth Amendment (by allowing
voters to vote for only one Elector rather than “Electors”), and a
particular federal statute. Id. , at 8–9 (argument for
plaintiffs in error). Nor does the quote highlighted by petitioners
tell the whole story. Chief Justice Fuller’s opinion for the Court
explained that “[t]he legislative power is the supreme authority except as limited by the constitution of the State .” Id. , at 25 (emphasis added); see also ibid. (“What is
forbidden or required to be done by a State is forbidden or
required of the legislative power under state constitutions as they
exist.”).

															The legislative defendants and Justice Thomas
rely as well on our decision in Leser v. Garnett , 258 U.S.
130 (1922), but it too offers little support. See post ,
at 17, 20–21. Leser addressed an argument that the
Nineteenth Amendment—providing women the right to vote—was invalid
because state constitutional provisions “render[ed] inoperative the
alleged ratifications by their legislatures.” 258 U. S., at
137. We rejected that position, holding that when state
legislatures ratify amendments to the Constitution, they carry out
“a federal function derived from the Federal Constitution,” which
“transcends any limitations sought to be imposed by the people of a
State.” Ibid. But the legislature in Leser performed a
ratifying function rather than engaging in traditional lawmaking.
The provisions at issue in today’s case—like the provisions
examined in Hildebrant and Smiley —concern a state
legislature’s exercise of lawmaking power. And as we held in Smiley , when state legislatures act pursuant to their
Elections Clause authority, they engage in lawmaking subject to the
typical constraints on the exercise of such power. 285 U. S.,
at 367. We have already distinguished Leser on those
grounds. Smiley , 285 U. S., at 365–366. In addition, Leser cited for support our decision in Hawke v. Smith , which sharply separated ratification “from
legislative action” under the Elections Clause. 253 U. S., at
228. Lawmaking under the Elections Clause, Hawke explained,
“is entirely different from the requirement of the Constitution as
to the expression of assent or dissent to a proposed amendment to
the Constitution.” Id. , at 231. Hawke and Smiley delineated the
various roles that the Constitution assigns to state legislatures.
Legislatures act as “Consent[ing]” bodies when the Nation purchases
land, Art. I, §8, cl. 17; as “Ratif[ying]” bodies when they agree
to proposed Constitutional amendments, Art. V; and—prior to
the passage of the Seventeenth Amendment—as “electoral” bodies when
they choose United States Senators, Smiley , 285 U. S.,
at 365; see also Art. I, §3, cl. 1; Amdt. 17 (providing for
the direct election of Senators).

															By fulfilling their constitutional duty to craft
the rules governing federal elections, state legislatures do not
consent, ratify, or elect—they make laws. Elections are complex
affairs, demanding rules that dictate everything from the date on
which voters will go to the polls to the dimensions and font of
individual ballots. Legislatures must “provide a complete code for
congressional elections,” including regulations “relati[ng] to
notices, registration, supervision of voting, protection of voters,
prevention of fraud and corrupt practices, counting of votes,
duties of inspectors and canvassers, and making and publication of
election returns.” Smiley , 285 U. S., at 366. In
contrast, a simple up-or-down vote suffices to ratify an amendment
to the Constitution. Providing consent to the purchase of land or
electing Senators involves similarly straightforward exercises of
authority. But fashioning regulations governing federal elections
“unquestionably calls for the exercise of lawmaking authority.” Arizona State Legislature , 576 U. S., at 808,
n. 17. And the exercise of such authority in the context of
the Elections Clause is subject to the ordinary constraints on
lawmaking in the state constitution.

															In sum, our precedents have long rejected the
view that legislative action under the Elections Clause is purely
federal in character, governed only by restraints found in the
Federal Constitution.

															C

															Addressing our decisions in Smiley and Hildebrant , both the legislative defendants and Justice
Thomas concede that at least some state constitutional provisions
can restrain a state legislature’s exercise of authority under the
Elections Clause. But they read those cases to differentiate
between procedural and substantive constraints. Brief for
Petitioners 24; post , at 21–22 (opinion of Thomas, J.). Smiley , in their view, stands for the proposition that state
constitutions may impose only procedural hoops through which
legislatures must jump in crafting rules governing federal
elections. This concededly “formalistic” approach views the
Governor’s veto at issue in Smiley as one such procedural
restraint. Tr. of Oral Arg. 62. But when it comes to substantive
provisions, their argument goes, our precedents have nothing to
say.

															This argument adopts too cramped a view of our
decision in Smiley . Chief Justice Hughes’s opinion for the
Court drew no distinction between “procedural” and “substantive”
restraints on lawmaking. It turned on the view that state
constitutional provisions apply to a legislature’s exercise of
lawmaking authority under the Elections Clause, with no concern
about how those provisions might be categorized. 285 U. S., at
367–368; see also Hildebrant , 241 U. S., at
569–570.

															The same goes for the Court’s decision in Arizona State Legislature . The defendants attempt to cabin
that case by arguing that the Court did not address substantive
limits on the regulation of federal elections. But as in Smiley , the Court’s decision in Arizona State
Legislature discussed no difference between procedure and
substance.

															The dissent reads Smiley and Arizona
State Legislature in a different light. Justice Thomas thinks
those cases say nothing about whether a State can impose
“substantive limits” on the legislature’s exercise of power under
the Elections Clause. Post , at 21. But in Smiley , we
addressed whether “the conditions which attach to the making of
state laws” apply to legislatures exercising authority under the
Elections Clause. 285 U. S., at 365. We held that they do.
“Much that is urged in argument with regard to the meaning of the
term ‘Legislature,’ ” we explained, “is beside the point.” Ibid. And we concluded in straightforward terms that
legislatures must abide by “restriction[s] imposed by state
constitutions . . . when exercising the
lawmaking power” under the Elections Clause. Id. , at 369. Arizona State Legislature said much the same, emphasizing
that, by its text, nothing in the Elections Clause offers state
legislatures carte blanche to act “in defiance of provisions
of the State’s constitution.” 576 U. S., at 818.

															The defendants and Justice Thomas do not in any
event offer a defensible line between procedure and substance in
this context. “The line between procedural and substantive law is
hazy.” Erie R. Co. v. Tompkins , 304 U.S.
64 , 92 (1938)
(Reed, J., concurring in part); see also Shady Grove Orthopedic
Associates, P. A. v. Allstate Ins. Co. , 559 U.S.
393 , 419–420 (2010) (Stevens, J., concurring in part and
concurring in judgment). Many rules “are rationally capable of
classification as either.” Hanna v. Plumer , 380 U.S.
460 , 472 (1965); see also Sun Oil Co. v. Wortman , 486 U.S.
717 , 726 (1988) (“Except at the extremes, the terms ‘substance’
and ‘procedure’ precisely describe very little except a
dichotomy.”). Procedure, after all, is often used as a vehicle to
achieve substantive ends. When a governor vetoes a bill because of
a disagreement with its policy consequences, has the governor
exercised a procedural or substantive restraint on lawmaking? Smiley did not endorse such murky inquiries into the nature
of constitutional restraints, and we see no neat distinction
today.

															D

															Were there any doubt, historical practice
confirms that state legislatures remain bound by state
constitutional restraints when exercising authority under the
Elections Clause. We have long looked to “settled and established
practice” to interpret the Constitution. The Pocket Veto
Case , 279 U.S.
655 , 689 (1929). And we have found historical practice
particularly pertinent when it comes to the Elections and Electors
Clauses. Smiley , 285 U. S., at 369 (Elections Clause); Chiafalo v. Washington , 591 U. S. ___, ___–___
(2020) (slip op., at 12–14) (Electors Clause).

															Two state constitutional provisions adopted
shortly after the founding offer the strongest evidence. Delaware’s
1792 Constitution provided that the State’s congressional
representatives “shall be voted for at the same places where
representatives in the State legislature are voted for, and in the
same manner.” Art. VIII, §2. Even though the Elections Clause
stated that the “Places” and “Manner” of federal elections shall be
“prescribed” by the state legislatures, the Delaware Constitution
expressly enacted rules governing the “places” and “manner” of
holding elections for federal office. An 1810 amendment to the
Maryland Constitution likewise embodied regulations falling within
the scope of the Elections and Electors Clauses. Article XIV
provided that every qualified citizen “shall vote, by
ballot, . . . for electors of the President and
Vice-President of the United States, [and] for Representatives of
this State in the Congress of the United States.” If the Elections
Clause had vested exclusive authority in state legislatures,
unchecked by state courts enforcing provisions of state
constitutions, these clauses would have been unenforceable from the
start.

															Besides the two specific provisions in Maryland
and Delaware, multiple state constitutions at the time of the
founding regulated federal elections by requiring that “[a]ll
elections shall be by ballot.” Ga. Const., Art. IV, §2 (1789); see
also, e.g. , Pa. Const., Art. III, §2 (1790); Ky. Const.,
Art. III, cl. 2 (1792); Tenn. Const., Art. III, §3 (1796); Ohio
Const., Art. IV, §2 (1803); La. Const., Art. VI, §13 (1812). These
provisions directed the “manner” of federal elections within the
meaning of the Elections Clause, as Madison himself explained at
the Constitutional Convention. See 2 Farrand 240 (“Whether the
electors should vote by ballot or vivâ voce” falls within the
“great latitude” of “regulating the times places & manner of
holding elections”).

															The legislative defendants discount this
evidence. They argue that those “by ballot” provisions spoke only
“to the offices that were created by” state constitutions, and not
to the federal offices to which the Elections Clause applies. Tr.
of Oral Arg. 18. We find no textual hook for that strained reading.
“All” meant then what it means now.

															In addition, the Framers did not write the
Elections Clause on a blank slate—they instead borrowed from the
Articles of Confederation, which provided that “delegates shall be
annually appointed in such manner as the legislature of each state
shall direct.” Art. V. The two provisions closely parallel.
And around the time the Articles were adopted by the Second
Continental Congress, multiple States regulated the “manner” of
“appoint[ing] delegates,” ibid. , suggesting that the Framers
did not understand that language to insulate state legislative
action from state constitutional provisions. See Del. Const., Art.
XI (1776); Md. Const., Art. XXVII (1776); Va. Const., cls. 3–4
(1776); Pa. Const., §11 (1776); N. C. Const., Art. XXXVII (1776);
Ga. Const., Art. XVI (1777); N. Y. Const., Art. XXX (1777);
S. C. Const., Art. XXII (1778); Mass. Const., pt. 2, ch. IV
(1780); N. H. Const., pt. II (1784).

															The defendants stress an 1820 convention held in
Massachusetts to amend the Commonwealth’s Constitution. After a
Boston delegate proposed a provision regulating the manner of
federal elections, Joseph Story—then a Justice of this Court—nixed
the effort. In Story’s view, such a provision would run afoul of
the Elections Clause by “assum[ing] a control over the Legislature,
which the constitution of the United States does not justify.”
Journal of the Debates and Proceedings in the Convention of
Delegates 110 (1853). But Story’s comment elicited little
discussion, and reflects the views of a jurist who, although “a
brilliant and accomplished man, . . . was not a member of
the Founding generation.” U. S. Term Limits, Inc. v. Thornton , 514 U.S.
779 , 856 (1995) (Thomas, J., dissenting).

															V

															A

															Although we conclude that the Elections Clause
does not exempt state legislatures from the ordinary constraints
imposed by state law, state courts do not have free rein. “State
courts are the appropriate tribunals . . . for the
decision of questions arising under their local law, whether
statutory or otherwise.” Murdock v. Memphis , 20 Wall.
590, 626 (1875). At the same time, the Elections Clause expressly
vests power to carry out its provisions in “the Legislature” of
each State, a deliberate choice that this Court must respect. As in
other areas where the exercise of federal authority or the
vindication of federal rights implicates questions of state law, we
have an obligation to ensure that state court interpretations of
that law do not evade federal law.

															State law, for example, “is one important
source” for defining property rights. Tyler v. Hennepin
County , 598 U. S. ___, ___ (2023) (slip op., at 5); see
also Board of Regents of State Colleges v. Roth , 408 U.S.
564 , 577 (1972) (property rights “are created and their
dimensions are defined by existing rules or understandings that
stem from an independent source such as state law”). At the same
time, the Federal Constitution provides that “private property”
shall not “be taken for public use, without just compensation.”
Amdt. 5. As a result, States “may not sidestep the Takings Clause
by disavowing traditional property interests.” Phillips v. Washington Legal Foundation , 524 U.S.
156 , 164 (1998); see also Webb’s Fabulous Pharmacies,
Inc. v. Beckwith , 449 U.S.
155 , 164 (1980) (holding that States may not, “by ipse
dixit , . . . transform private property into public
property without compensation”).

															A similar principle applies with respect to the
Contracts Clause, which provides that “[n]o state shall
. . . pass any . . . Law impairing the
Obligation of Contracts.” Art. I, §10, cl. 1. In that context “we
accord respectful consideration and great weight to the views of
the State’s highest court.” Indiana ex rel. Anderson v. Brand , 303 U.S.
95 , 100 (1938). Still, “in order that the constitutional
mandate may not become a dead letter, we are bound to decide for
ourselves whether a contract was made.” Ibid. ; see also General Motors Corp. v. Romein , 503 U.S.
181 , 187 (1992).

															Cases raising the question whether adequate and
independent grounds exist to support a state court judgment involve
a similar inquiry. We have in those cases considered whether a
state court opinion below adopted novel reasoning to stifle the
“vindication in state courts of . . . federal
constitutional rights.” NAACP v. Alabama ex rel.
Patterson , 357 U.S.
449 , 457–458 (1958).

															Running through each of these examples is the
concern that state courts might read state law in such a manner as
to circumvent federal constitutional provisions. Therefore,
although mindful of the general rule of accepting state court
interpretations of state law, we have tempered such deference when
required by our duty to safeguard limits imposed by the Federal
Constitution.

															Members of this Court last discussed the outer
bounds of state court review in the present context in Bush v. Gore , 531 U.S.
98 (2000) ( per curiam ). Our decision in that case
turned on an application of the Equal Protection Clause of the
Fourteenth Amendment. Id. , at 104–105. In separate writings,
several Justices addressed whether Florida’s Supreme Court, in
construing provisions of Florida statutory law, exceeded the bounds
of ordinary judicial review to an extent that its interpretation
violated the Electors Clause.

															Chief Justice Rehnquist, joined in a concurring
opinion by Justice Thomas and Justice Scalia, acknowledged the
usual deference we afford state court interpretations of state law,
but noted “areas in which the Constitution requires this Court to
undertake an independent, if still deferential, analysis of state
law.” Id. , at 114. He declined to give effect to
interpretations of Florida election laws by the Florida Supreme
Court that “impermissibly distorted them beyond what a fair reading
required.” Id. , at 115. Justice Souter, for his part,
considered whether a state court interpretation “transcends the
limits of reasonable statutory interpretation to the point of
supplanting the statute enacted by the ‘legislature’ within the
meaning of Article II.” Id. , at 133 (Souter, J., joined by
Stevens, Ginsburg, and Breyer, JJ., dissenting).

															We do not adopt these or any other test by which
we can measure state court interpretations of state law in cases
implicating the Elections Clause. The questions presented in this
area are complex and context specific. We hold only that state
courts may not transgress the ordinary bounds of judicial review
such that they arrogate to themselves the power vested in state
legislatures to regulate federal elections.

															B

															We decline to address whether the North
Carolina Supreme Court strayed beyond the limits derived from the
Elections Clause. The legislative defendants did not meaningfully
present the issue in their petition for certiorari or in their
briefing, nor did they press the matter at oral argument. See Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal. , 522 U.S.
192 , 206–208 (1997); see also California v. Texas , 593 U. S. ___, ___ (2021) (slip op., at 10).
Counsel for the defendants expressly disclaimed the argument that
this Court should reassess the North Carolina Supreme Court’s
reading of state law. Tr. of Oral Arg. 7 (“We’re not asking this
Court to second-guess or reassess. We say take the North Carolina
Supreme Court’s decision on face value and as fairly reflecting
North Carolina law . . . .”). When pressed whether
North Carolina’s Supreme Court did not fairly interpret its State
Constitution, counsel reiterated that such an argument was “not our
position in this Court.” Id. , at 54. Although counsel
attempted to expand the scope of the argument in rebuttal, such
belated efforts do not overcome prior failures to preserve the
issue for review. See this Court’s Rule 28 (“[C]ounsel making the
opening argument shall present the case fairly and completely and
not reserve points of substance for rebuttal.”).

															*  *  *

															State courts retain the authority to apply
state constitutional restraints when legislatures act under the
power conferred upon them by the Elections Clause. But federal
courts must not abandon their own duty to exercise judicial review.
In interpreting state law in this area, state courts may not so
exceed the bounds of ordinary judicial review as to
unconstitutionally intrude upon the role specifically reserved to
state legislatures by Article I, Section 4, of the Federal
Constitution. Because we need not decide whether that occurred in
today’s case, the judgment of the North Carolina Supreme Court is
affirmed.[ 2 ]

															It is so ordered. Notes 1 The plaintiffs also
asserted that North Carolina’s Legislature discriminated on the
basis of race and raised other claims under the North Carolina
Constitution. Harper I , 380 N. C., at 350–352, 868
S. E. 2d, at 526–527. Those claims are not at issue
today. 2 As noted, supra ,
at 5–6, the North Carolina Supreme Court withdrew the opinion in Harper II , which addressed both the remedial maps developed
by the General Assembly and an order by the trial court
implementing an interim plan for the 2022 elections. The remedial
order, having been withdrawn, is not before us, and our decision
today does not pass on the constitutionality of any particular map
adopted by the state courts. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–1271

															_________________

															TIMOTHY K. MOORE, in his official capacity as
SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
et al., PETITIONERS v. REBECCA HARPER, et al.

															on writ of certiorari to the supreme court of
north carolina

															[June 27, 2023]

															Justice Kavanaugh, concurring.

															I join the Court’s opinion in full. The Court
today correctly concludes that state laws governing federal
elections are subject to ordinary state court review, including for
compliance with the relevant state constitution. Ante , at
15, 26, 29. But because the Elections Clause assigns authority
respecting federal elections to state legislatures, the Court also
correctly concludes that “state courts do not have free rein” in
conducting that review. Ante , at 26. Therefore, a state
court’s interpretation of state law in a case implicating the
Elections Clause is subject to federal court review. Ante ,
at 26–30; see also Bush v. Palm Beach County Canvassing
Bd. , 531 U.S.
70 , 76–78 (2000) (unanimously concluding that a state court’s
interpretation of state law in a federal election case presents a
federal issue); cf. Democratic National Committee v. Wisconsin State Legislature , 592 U. S. ___, ___,
n. 1 (2020) (Kavanaugh, J., concurring in denial of
application to vacate stay) (slip op., at 9, n. 1). Federal
court review of a state court’s interpretation of state law in a
federal election case “does not imply a disrespect for state courts but rather a respect for the constitutionally
prescribed role of state legislatures .” Bush v. Gore , 531 U.S.
98 , 115 (2000) (Rehnquist, C. J., concurring).

															The question, then, is what standard a federal
court should employ to review a state court’s interpretation of
state law in a case implicating the Elections Clause—whether Chief
Justice Rehnquist’s standard from Bush v. Gore ;
Justice Souter’s standard from Bush v. Gore ; the
Solicitor General’s proposal in this case; or some other
standard.

															Chief Justice Rehnquist’s standard is
straightforward: whether the state court “impermissibly distorted”
state law “beyond what a fair reading required.” Ibid. As I
understand it, Justice Souter’s standard, at least the critical
language, is similar: whether the state court exceeded “the limits
of reasonable” interpretation of state law. Id. , at 133
(dissenting opinion). And the Solicitor General here has proposed
another similar approach: whether the state court reached a “truly
aberrant” interpretation of state law. Brief for United States as Amicus Curiae 27.

															As I see it, all three standards convey
essentially the same point: Federal court review of a state court’s
interpretation of state law in a federal election case should be
deferential, but deference is not abdication.[ 1 ] I would adopt Chief Justice Rehnquist’s
straightforward standard. As able counsel for North Carolina stated
at oral argument, the Rehnquist standard “best sums it up.” Tr. of
Oral Arg. 131. Chief Justice Rehnquist’s standard should apply not
only to state court interpretations of state statutes, but also to
state court interpretations of state constitutions. And in
reviewing state court interpretations of state law, “we necessarily
must examine the law of the State as it existed prior to the action
of the [state] court.” Bush , 531 U. S., at 114
(Rehnquist, C. J., concurring).

															Petitioners here, however, have disclaimed any
argument that the North Carolina Supreme Court misinterpreted the
North Carolina Constitution or other state law. See ante , at
29.[ 2 ] For now, therefore, this
Court need not, and ultimately does not, adopt any specific
standard for our review of a state court’s interpretation of state
law in a case implicating the Elections Clause. See ante , at
28 (“We do not adopt these or any other test by which we can
measure state court interpretations of state law in cases
implicating the Elections Clause”). Instead, the Court today says
simply that “state courts do not have free rein” and “hold[s] only
that state courts may not transgress the ordinary bounds of
judicial review.” Ante , at 26, 29. In other words, the Court
has recognized and articulated a general principle for federal
court review of state court decisions in federal election cases. In
the future, the Court should and presumably will distill that
general principle into a more specific standard such as the one
advanced by Chief Justice Rehnquist.

															With those additional comments, I agree with the
Court’s conclusions that (i) state laws governing federal elections
are subject to ordinary state court review, and (ii) a state
court’s interpretation of state law in a case implicating the
Elections Clause is in turn subject to federal court review. Notes 1 I doubt that there would
be a material difference in application among the standards
formulated by Chief Justice Rehnquist, Justice Souter, and the
Solicitor General, given the similarities in the three standards,
at least as described above. To be sure, different judges may reach
different conclusions in an individual case about whether a
particular state court interpretation is impermissible under the
chosen standard. But I doubt that the precise formulation of the
standard—assuming it is Chief Justice Rehnquist’s, Justice
Souter’s, or the Solicitor General’s—would be the decisive factor
in any such disagreement. 2 Instead, petitioners make
the broader argument, which the Court today properly rejects, that
the Elections Clause bars state courts from reviewing state laws
for compliance with the relevant state constitution. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–1271

															_________________

															TIMOTHY K. MOORE, in his official capacity as
SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES,
et al., PETITIONERS v. REBECCA HARPER, et al.

															on writ of certiorari to the supreme court of
north carolina

															[June 27, 2023]

															Justice Thomas, with whom Justice Gorsuch
joins, and with whom Justice Alito joins as to Part I,
dissenting.

															This Court sits “to resolve not questions and
issues but ‘Cases’ or ‘Controversies.’ ” Arizona Christian
School Tuition Organization v. Winn , 563 U.S.
125 , 132 (2011); see U. S. Const., Art. III, §1. As a
corollary of that basic constitutional principle, the Court “is
without power to decide moot questions or to give advisory opinions
which cannot affect the rights of the litigants in the case before
it.” St. Pierre v. United States , 319 U.S.
41 , 42 (1943) ( per curiam ). To do so would be to violate
“the oldest and most consistent thread in the federal law of
justiciability.” Flast v. Cohen , 392 U.S.
83 , 96 (1968) (internal quotation marks omitted).

															The opinion that the Court releases today breaks
that thread. It “affirms” an interlocutory state-court judgment
that has since been overruled and supplanted by a final judgment
resolving all claims in petitioners’ favor. The issue on which it
opines—a federal defense to claims already dismissed on other
grounds—can no longer affect the judgment in this litigation in any
way. As such, the question is indisputably moot, and today’s
majority opinion is plainly advisory. Because the writ of
certiorari should be dismissed, I respectfully dissent.

															I

															Here is the case before us in a nutshell: A
group of plaintiffs sued various state officials under state law.
The defendants raised both state-law and federal-law defenses. In
the interlocutory judgment below, the State Supreme Court rejected
both defenses and remanded for further proceedings. We granted
review to consider the defendants’ federal defense. But then, in
subsequent proceedings, the state court revisited defendants’
alternative state-law defense and held that it was meritorious. As
a result, the court finally adjudicated the whole case in the
defendants’ favor, dismissing the plaintiffs’ claims with
prejudice.

															This is a straightforward case of mootness. The
federal defense no longer makes any difference to this case—whether
we agree with the defense, disagree with it, or say nothing at all,
the final judgment in this litigation will be exactly the same. The
majority does not seriously contest that fact. Even so, it asserts
jurisdiction to decide this free-floating defense that affects no
live claim for relief, reasoning that a justiciable case or
controversy exists as long as its opinion can in any way “alter the
presently operative statutes of ” a State. Ante , at 7
(internal quotation marks omitted). By its own lights, the majority
“is acting not as an Article III court,” Uzuegbunam v. Preczewski , 592 U. S. ___, ___ (2021) (Roberts,
C. J., dissenting) (slip op., at 3), but as an ad hoc
branch of a state legislature. That is emphatically not our job.
Compare U. S. Const., Art. III, §1, with N. C.
Const., Art. II, §1.

															A

															To review the history of this case is to
demonstrate that the question presented is moot. In 2021, the North
Carolina General Assembly passed an Act to redistrict the State for
elections to the U. S. House of Representatives.
Plaintiffs-respondents filed an action in state court, seeking to
enjoin state elections officials (defendants-respondents here) from
conducting elections in accord with the Act.[ 1 ] They based their claim for relief on the North
Carolina Constitution, which they argued prohibits excessive
partisan gerrymanders.

															Petitioners, state legislators representing
North Carolina’s interest in the enforcement of the Act, see
N. C. Gen. Stat. Ann. §1–72.2 (2021); Berger v. North Carolina State Conference of the NAACP , 597 U. S.
___, ___, ___–___ (2022) (slip op., at 2, 8–9), raised defenses
under both state and federal law. As relevant here, they argued:
(1) that partisan-gerrymandering claims are not justiciable under
the North Carolina Constitution; and (2) that the State
Constitution cannot restrict the General Assembly’s congressional
districting legislation under the federal Elections Clause,
U. S. Const., Art. I, §4, cl. 1.

															Initially, a three-judge trial court endorsed
petitioners’ state-law defense and entered a final judgment
dismissing plaintiffs-respondents’ claims with prejudice. But, on
appeal, the North Carolina Supreme Court reversed that judgment.
See Harper v. Hall , 380 N. C. 317, 868 S.E.2d
499 (2022) ( Harper I ). In Harper I , the court held
that the 2021 Act violated the State Constitution, enjoined its
implementation, and remanded the case to the trial court for
remedial proceedings. In doing so, Harper I rejected both
petitioners’ state-law justiciability defense and their federal
Elections Clause defense.

															Petitioners then sought this Court’s review of Harper I insofar as it rejected their federal defense. From
the start, they faced a significant jurisdictional question. Our
appellate jurisdiction over state courts is limited to “[f]inal
judgments or decrees rendered by the highest court of a State in
which a decision could be had.” 28 U. S. C. §1257(a). But Harper I was “a classic example of non-finality”; it was an
order that resolved the issue of liability and remanded for
remedial proceedings. Taylor v. Board of Ed. of City
School Dist. of New Rochelle , 288 F.2d 600, 602 (CA2 1961)
(Friendly, J.). Thus, under the normal rules, Harper I would
not be “reviewable by this Court.” Jefferson v. City of
Tarrant , 522 U.S.
75 , 81 (1997).

															Nonetheless, this Court’s precedents have
recognized “a limited set of situations” in which “finality as to
[a] federal issue ” permits our review, even in the absence
of a final judgment as to the case . O’Dell v. Espinoza , 456 U.S.
430 (1982) ( per curiam ) (emphasis added). In granting
certiorari, we relied on one of those doctrinal exceptions,
premised on the assumption that “the federal issue” in this case
would “survive and require decision regardless of the outcome of
future state-court proceedings.” Cox Broadcasting Corp. v. Cohn , 420 U.S.
469 , 480 (1975).

															As it turned out, that assumption was wrong.
After Harper I , on remand, the trial court adopted a
remedial districting plan for the 2022 elections. Petitioners then
appealed that order, taking the case to the North Carolina Supreme
Court for a second time. Initially, the North Carolina Supreme
Court released an opinion applying Harper I and affirming
the trial court’s decree. Harper v. Hall , 383
N. C. 89, 881 S.E.2d 156 (2022) ( Harper II ). But
then, after granting petitioners’ request for rehearing, the court
“revisit[ed] the crucial issue in this case: whether claims of
partisan gerrymandering are justiciable under the state
constitution.” Harper v. Hall , ___ N. C. ___,
___, 886 S.E.2d 393, 399 (2023) ( Harper III ). After
reexamining “the fundamental premises underlying the decisions in
both Harper II and Harper I ,” the court “h[e]ld that
partisan gerrymandering claims present a political question that is
nonjusticiable under the North Carolina Constitution.” Id. ,
at ___–___, 886 S. E. 2d, at 400–401. It concluded:

															“This Court’s opinion in Harper I is overruled. We affirm the three-judge panel’s [original] 11
January 2022 Judgment concluding, inter alia , that claims of
partisan gerrymandering present nonjusticiable, political questions
and dismissing all of plaintiffs’ claims with prejudice. This
Court’s opinion in Harper II is withdrawn and superseded by
this opinion. The three-judge panel’s 23 February 2022 order
addressing the Remedial Plans is vacated. Plaintiffs’ claims are
dismissed with prejudice.” Id. , at ___, 886 S. E. 2d,
at 449.

															In short, this case is over, and petitioners
won. The trial court’s original final judgment in favor of
petitioners, affirmed by the State Supreme Court in Harper
III , represents “the final determination of the rights of the
parties” in this case. N. C. Rule Civ. Proc. 54(a) (2023). Harper I has been overruled, and plaintiffs-respondents’
claims for relief have been dismissed on adequate and independent
state-law grounds. As a result, petitioners’ alternative Elections
Clause defense to those claims no longer requires decision; the
merits of that defense simply have no bearing on the judgment
between the parties in this action. That is the definition of
mootness for an issue.

															It follows that no live controversy remains
before this Court. For any case or controversy to exist here,
petitioners must be injured by the judgment below, and we must be
able to redress that injury by acting upon that judgment. See, e.g. , Food Marketing Institute v. Argus Leader
Media , 588 U. S. ___, ___ (2019) (slip op., at 4); see
also Ex parte Bollman , 4 Cranch 75, 86 (1807) (“The
criterion [of] appellate . . . jurisdiction, is that it
revises and corrects the decisions of another tribunal”). But
petitioners are not injured by the judgment of Harper I at
all, nor could we redress any injury to petitioners by doing
anything to it. Whether we accept or reject petitioners’ Elections
Clause defense, plaintiffs-respondents’ claims remain dismissed. As
far as this case is concerned, there simply is nothing this Court
could decide that could make any difference to who wins or what
happens next in any lower court. That is the definition of mootness
for an appellate proceeding.

															The United States understands this. See
Supplemental Letter Brief for United States as Amicus Curiae 3 (May 11, 2023) (“[T]he question this Court granted certiorari to
decide is now moot because the Court’s resolution of that question
could not affect the disposition of this case”). So do the
elections officials whose conduct Harper I once enjoined.
Supplemental Brief for State Respondents 1 (May 11, 2023) (“[T]his
case is moot”). So, too, do the plaintiffs-respondents who started
this case in the first place. See Letter Brief for North Carolina
League of Conservation Voters, Inc., et al. 2 (May 11, 2023)
(“The North Carolina Supreme Court’s February 2022 judgment reversing the same January 11, 2022 trial-court judgment
that the North Carolina Supreme Court just affirmed is now a
nullity”); Supplemental Letter Brief for Rebecca Harper et al.
1 (May 11, 2023) (“Petitioners have won a full victory in state
court”). As one group of plaintiffs-respondents put it, “there is
no non-frivolous basis for jurisdiction here.” Ibid. B

															The majority does not contest that the
Elections Clause issue in this case was only a defense to
plaintiffs- respondents’ claims for relief. Nor does it deny that Harper III overruled Harper I and affirmed the very
same trial-court judgment that Harper I had reversed. And it
concedes that, as a result, plaintiffs-respondents’ claims have
been dismissed in full on state-law nonjusticiability grounds.
Thus, the majority does not contend that its opinion on the
Elections Clause issue could make any difference to the final
judgment “adjudicating all the claims and the rights and
liabilities of all the parties” in this case. N. C. Rule Civ.
Proc. 54(b). That should be the end of the discussion. Because the
question presented “cannot affect the rights of [the] litigants in
the case before [us],” we “are without power to decide” it. North Carolina v. Rice , 404 U.S.
244 , 246 (1971) ( per curiam ).

															Nonetheless, the majority finds that the
judgment below still presents a live Article III case or
controversy; it then further concludes that the question presented
has survived and requires decision under Cox
Broadcasting .[ 2 ] See ante , at 6–11. In doing so, it relies extensively on
petitioners’ “representations” that they “remain bound by the
judgment in Harper I .” Ante , at 10; see also ante , at 5, 7, 11. But, of course, parties’ mere
representations that they are injured never carry their “burden of demonstrating that they have standing” in this Court. TransUnion LLC v. Ramirez , 594 U. S. ___, ___
(2021) (slip op., at 15) (emphasis added). Nor can such
representations affect our “independent obligation to assure
ourselves that jurisdiction is proper before proceeding to the
merits.” Plains Commerce Bank v. Long Family Land &
Cattle Co. , 554 U.S.
316 , 324 (2008).

															To ensure that it has jurisdiction here, the
majority must explain how petitioners’ federal defense could still
affect “the rights of [the] litigants in th[is] case.” Rice ,
404 U. S., at 246. It fails to do so. Instead, it mostly
points to irrelevant facts about the procedural history of this
case and misapplies civil-procedure rules as if Harper I and Harper III did not involve the same case. But the error that
actually drives the majority’s conclusion is much deeper. The
majority evidently thinks that when Harper I held the 2021
Act unconstitutional, it entered a “judgment” affecting the 2021
Act as a statute , independent of its application to the
legal rights of the litigants in this case. And the majority thinks
that to reverse Harper I ’s “judgment” would “negate
the force of its order striking down” the Act, thus “alter[ing] the
presently operative statutes of North Carolina.” Ante , at 7
(internal quotation marks omitted). But, of course, the judicial
power does not “operate on legal rules in the abstract”; it
operates on the rights and liabilities of contending parties with
adverse legal interests. California v. Texas , 593
U. S. ___, ___ (2021) (slip op., at 8) (internal quotation
marks omitted). The majority’s reasoning cannot be squared with the
judicial power vested by the Constitution, the case-or-controversy
requirement, or the nature of judicial review.

															I start by clearing away some of the brush.
True, Harper III did not expressly “revisit” the Elections
Clause issue, ante , at 6; true as well, petitioners did not
obtain rehearing of Harper I , see ante , at 7. But
none of that matters because Harper III ’s final
judgment mooted the Elections Clause issue in this case by
dismissing plaintiffs-respondents’ claims on alternative state-law
grounds.[ 3 ] Likewise, the idea
that Harper III did not “alter or amend in any way the
judgment in Harper I ,” ante , at 9, is both irrelevant
and incorrect. It is irrelevant because our jurisdiction requires a case , and this case is over no matter what becomes of
the empty husk of Harper I ’s interlocutory judgment.
It is incorrect because Harper I ’s judgment—reversing
the trial court’s original judgment and remanding the case—was
completely negated by Harper III ’s affirmance of the
same trial-court judgment.

															In the same vein, the majority’s suggestion that Harper I has any “res judicata consequences” is completely
inapposite. Ante , at 9 (internal quotation marks omitted).
Res judicata is the principle that “[a] final judgment on the
merits of an action” bars relitigation “in [a] second action” of
the same claim or of issues actually litigated and necessary to the
judgment in the first action. Federated Department Stores,
Inc. v. Moitie , 452 U.S.
394 , 398 (1981); see also Taylor v. Sturgell , 553 U.S.
880 , 892 (2008). Harper I was not a final judgment (as
the majority concedes by applying Cox Broadcasting ), so res
judicata simply has nothing to do with it. Nothing decided by Harper I was res judicata in the second state-court appeal,
see Southern R. Co. v. Clift , 260
U.S. 316 , 319 (1922), nor would Harper I ’s
interlocutory Elections Clause holding have any res judicata effect
in a future action between these parties, see Restatement (Second)
of Judgments §27, and Comment h , and Illus. 13 and 14 (1980)
(only issue determinations essential to a final judgment have
preclusive effect; if a defendant obtains a final judgment based on
one defense, the court’s rejection of alternative defenses is not
preclusive in a later action). At the risk of belaboring the
obvious, the clearest proof that Harper I was not a final
judgment is Harper III —which “revisit[ed]” Harper
I ’s determination of a “crucial issue in this case,” ___
N. C., at ___, 886 S. E. 2d, at 399; overruled Harper
I ’s determination of that issue; and affirmed the very
same final judgment for petitioners that Harper I had
reversed.[ 4 ]

															How could petitioners still be injured, and what
more could this Court possibly do for them? The majority suggests
that the interlocutory injunction issued in Harper I still
harms petitioners, see ante , at 7, 10–11, but that idea is
untenable. To start, the majority overlooks that the injunction
only ran against the conduct of defendants- respondents—the state
officials who actually implement election laws—not petitioners as
legislators. See Berger , 597 U. S., at ___ (slip op.,
at 2). Next, the majority fails to consider what it would mean if
the injunction is still binding: that defendants-respondents are
liable to “be held in contempt and put in jail” if they ever
implement the 2021 Act, Richmond Cty. Bd. of Ed. v. Cowell , 254 N. C. App. 422, 426, 803 S.E.2d 27, 30–31
(2017), even though Harper III dismissed this suit’s
challenge to the Act as “beyond the reach of [North Carolina’s]
courts,” ___ N. C., at ___, 886 S. E. 2d, at 431
(internal quotation marks omitted). That idea defies both common
sense and civil procedure. A court simply does not go on enforcing
an interlocutory injunction—and imposing contempt sanctions for
disobedience—after reaching a final judgment dismissing every
relevant claim for relief. Rather, the interlocutory injunction
(like all interlocutory orders) merges into the final judgment
fully “adjudicating all the claims and the rights and liabilities of all the parties” to the case. N. C. Rule
Civ. Proc. 54(b) (emphasis added). “With the entry of [ Harper
III ’s] final judgment, the life of [ Harper
I ’s] injunction came to an end, and it no longer ha[s] a
binding effect on any one.” Madison Square Garden Boxing,
Inc. v. Shavers , 562 F.2d 141, 144 (CA2 1977).

															In any event, the majority’s analysis plainly
does not turn on the belief that any defendant remains liable to
potential contempt sanctions and jail time. Instead, its animating
idea (uncritically borrowed from petitioners) is that Harper
I ’s “judgment” operated against the 2021 Act as a
statute . The majority describes Harper I ’s
“judgment” interchangeably as “enjoining the use of the 2021 ma[p]”
and “striking down the 2021 pla[n].” Ante , at 7, 9. It then
reasons that reversing that “judgment” would “negate the force of
its order striking down the 2021 pla[n],” thus “alter[ing] the
presently operative statutes of North Carolina” such that the 2021
Act would “again take effect.” Ante , at 7–8 (internal
quotation marks omitted). The majority regards this aspect of Harper I ’s “judgment” as entirely independent of Harper III ’s final resolution of the claims in this
case. See ante , at 5–8, 10–11. And it finds its theory
“confirm[ed]” by a proviso in a remedial redistricting Act, passed
immediately after Harper I , stating that the 2021 Act would
“again become effective” if this Court reversed Harper I . Ante , at 8 (internal quotation marks omitted). In short, the
“case or controversy” that the majority thinks is still before us
has nothing to do with the parties’ rights and liabilities on the
claims asserted in this action; rather, it is simply whether a
particular legislative Act, which Harper I supposedly made
inoperative, will again be “operative” or “effective” as a state
statute. Ante , at 7–8 (internal quotation marks
omitted).

															This reasoning bears no connection to the
judicial power of this Court or the court below. Judicial power is
the power to adjudicate “definite and concrete” disputes “touching
the legal relations of parties having adverse legal interests,” Rice , 404 U. S., at 246 (internal quotation marks
omitted), by “determin[ing] the respective rights and liabilities
or duties” of the parties before a court in a particular case, Nicholson v. State Ed. Assistance Auth. , 275
N. C. 439, 447, 168 S.E.2d 401 , 406 (1969). Thus, a judgment binds the rights
of the parties in that case, see Taylor , 553 U. S., at
892–893, and it awards remedies that “operate with respect to
[those] specific parties,” California , 593 U. S., at
___ (slip op., at 8) (internal quotation marks omitted). In
deciding any case, the court must “ascertai[n] and declar[e] the
law applicable to the controversy”; this duty, in turn, implies
“the negative power to disregard an unconstitutional enactment” in
deciding the case. Massachusetts v. Mellon , 262 U.S.
447 , 488 (1923); accord, Nicholson , 275 N. C., at
447, 168 S. E. 2d, at 406; Marbury v. Madison , 1
Cranch 137, 176–178 (1803). But this negative power of judicial
review is not a “power per se to review and annul acts
of [legislation] on the ground that they are unconstitutional,” Mellon , 262 U. S., at 488; “to change or to repeal
statutes,” Person v. Doughton , 186 N. C. 723,
725, 120 S.E. 481, 483 (1923); or to issue orders that “operate on
legal rules in the abstract,” California , 593 U. S., at
___ (slip op., at 8) (internal quotation marks omitted). Courts of
law simply do not render “judgments” that toggle statutes from
“operative” to “inoperative” and back again, as if judicial review
were some sort of in rem jurisdiction over legislative
Acts.

															Indeed, such a conception would contradict the
most basic premise of judicial review itself. “[A]n
unconstitutional provision is never really part of the body
of governing law,” for “the Constitution automatically displaces
[it] from the moment of [its] enactment.” Collins v. Yellen , 594 U. S. ___, ___ (2021) (slip op., at 35)
(emphasis added). Thus, when a court holds a statute
unconstitutional, it is emphatically not depriving it of any legal
force that it previously possessed as an Act. The court is only
deciding “a particular case” “conformably to the constitution,
disregarding” a statute that cannot “govern the case” because it is
already “void.” Marbury , 1 Cranch, at 178; accord, Bayard v. Singleton , 1 N. C. 5, 7 (1787)
(holding that the unconstitutional “act on which [a party’s] motion
was grounded . . . must of course, in that instance,
stand as abrogated and without any effect”). “That is the classic
explanation for the basis of judicial review” set forth in Marbury and Bayard , and it remains “from that day to
this the sole continuing rationale for the exercise of this
judicial power.” Mackey v. United States , 401 U.S.
667 , 678 (1971) (Harlan, J., concurring in judgment in part and
dissenting in part).

															The majority’s theory thus fails twice over,
both as a description of Harper I ’s “judgment” and as
an explanation of how any justiciable controversy could exist in
this Court. The only power that the North Carolina courts exercised
at any stage of this case was that of “determin[ing] the respective
rights and liabilities or duties of litigants in [the] controversy”
before them. Nicholson , 275 N. C., at 447, 168
S. E. 2d, at 406. Harper I ’s judgment line did
not read: “Stricken down,” referring to the 2021 Act, but instead:
“Reversed and remanded,” referring to the lower court judgment and
the case between these parties. 380 N. C., at 404, 868
S. E. 2d, at 560 (some capitalization deleted). The judicial
power operates upon parties and cases, not statutes, and Harper
I was no exception.[ 5 ]

															Even if it were, we would still have no case or
controversy in front of us. A freestanding “judgment” of statutory
invalidation—neutralizing the 2021 Act in some manner transcending
the final determination of the parties’ respective rights in this
case—would not be a judicial action within the meaning of Article
III, and it could not be reviewed in this Court. See Prentis v. Atlantic Coast Line Co. , 211 U.S.
210 , 226–227 (1908). “We sit as a court of law, not a council
of revision,” and “[o]ur powers of judicial review are judicial,
not legislative, in nature.” Mackey , 401 U. S., at 697
(opinion of Harlan, J.). The only power that we ever could have
exercised here was to modify the adjudicated rights and liabilities
of the parties with respect to the claims in this action. Because
we plainly cannot do so, no matter what we think about the
Elections Clause, this proceeding is moot. And the idea that we
could still decide petitioners’ moot federal defense because it
could “alter the presently operative statutes of North
Carolina”—even if it cannot affect the ultimate judgment in this
action—is wholly foreign to Article III. Ante , at 7
(internal quotation marks omitted).

															In that light, the post- Harper I remedial
Act and its “trigger provisio[n]” plainly can make no difference to
our jurisdiction or lack thereof. Ante, at 8. When passed,
that Act was essentially a change in the State’s conduct under
judicial constraint (the result of Harper I ), but with
the declared intention of resuming the original conduct if that
constraint were removed. That declaration kept the controversy
alive while the constraint still existed, as in Hunt v. Cromartie , 526 U.S.
541 , 545, n. 1 (1999). But, after Harper III , there is
no more constraint in this case. Harper I has been
overruled, and plaintiffs-respondents’ claims have been dismissed
in a final judgment. Nothing about this case prevents the State
from either enacting or implementing any districting plan. If “the
presently operative statutes of North Carolina” need to be
“alter[ed],” that is the General Assembly’s job, not ours. Ante , at 7 (internal quotation marks omitted). Regardless,
petitioners have fully prevailed in this case, and
plaintiffs-respondents have not obtained any enforceable relief
that could affect the conduct of future elections.

															Indeed, to the extent the trigger provision adds
anything to the majority’s analysis, it only underscores the
absence of a justiciable case or controversy.[ 6 ] A state legislature is free to condition the
effectiveness of a change in state law on external events,
including this Court’s actions in cases properly before it. But, as
should be obvious, such a trigger provision cannot be the entire
basis of an Article III case or controversy. Where, as here, the
Court cannot affect the adjudicated rights and liabilities of the
parties in the case below, a state legislature cannot manufacture a
justiciable controversy by providing that state law will change in
some way depending on how this Court answers a moot question. That
would simply be a roundabout way of asking this Court to render an
advisory opinion. But “federal courts cannot give answers simply
because someone asks.” Uzuegbunam , 592 U. S., at ___
(Roberts, C. J., dissenting) (slip op., at 12). That is true
when the request comes from Congress, see Muskrat v. United States , 219 U.S.
346 , 360–361 (1911), and it is equally true when the request
comes from a state legislature.[ 7 ]

															In sum, there is no issue before this Court that
can affect the judgment in this action. As such, the question
presented is moot, and the writ of certiorari should be
dismissed.

															II

															I would gladly stop there. The majority’s
views on the merits of petitioners’ moot Elections Clause defense
are of far less consequence than its mistaken belief that Article
III authorizes any merits conclusion in this case, and I do not
wish to belabor a question that we have no jurisdiction to decide.
Nonetheless, I do not find the majority’s merits reasoning
persuasive.

															The Elections Clause of the Constitution
provides that “[t]he Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators.” Art. I, §4, cl. 1. The question presented was
whether the people of a State can place state-constitutional limits
on the times, places, and manners of holding congressional
elections that “the Legislature” of the State has the power to
prescribe. Petitioners said no. Their position rests on three
premises, from which the conclusion follows.

															The first premise is that “the people of a
single State” lack any ability to limit powers “given by the people
of the United States” as a whole. McCulloch v. Maryland , 4 Wheat. 316, 429 (1819). This idea should be
uncontroversial, as it is “the unavoidable consequence of th[e]
supremacy” of the Federal Constitution and laws. Id. , at
436. As the Court once put it (in a case about the Article V
ratifying power of state legislatures), “a federal function derived
from the Federal Constitution . . . transcends any
limitations sought to be imposed by the people of a State.” Leser v. Garnett , 258 U.S.
130 , 137 (1922).

															The second premise is that regulating the times,
places, and manner of congressional elections “ ‘is no
original prerogative of state power,’ ” so that “such power
‘had to be delegated to, rather than reserved by, the
States.’ ” Cook v. Gralike , 531 U.S.
510 , 522 (2001) (first quoting 1 J. Story, Commentaries on the
Constitution of the United States §627 (3d ed. 1858) (Story); then
quoting U. S. Term Limits, Inc. v. Thornton , 514 U.S.
779 , 804 (1995)). This premise is firmly supported by this
Court’s precedents, which have also held that the Elections Clause
is “the exclusive delegation of ” such power, as “[n]o other
constitutional provision gives the States authority over
congressional elections.” Cook , 531 U. S., at 522–523;
see also United States v. Classic , 313 U.S.
299 , 315 (1941) (“While, in a loose sense, the right to vote
for representatives in Congress is sometimes spoken of as a right
derived from the states, this statement is true only in the sense
that the states are authorized by the Constitution, to legislate on
the subject as provided by [the Elections Clause]” (citations
omitted)).

															The third premise is that “the Legislature
thereof ” does not mean the people of the State or the State
as an undifferentiated body politic, but, rather, the lawmaking
power as it exists under the State Constitution. This premise
comports with the usual constitutional meanings of the words
“State” and “Legislature,” as well as this Court’s precedents. “A
state, and the legislature of a state, are quite different
political beings.” Story §628. “A state, in the ordinary sense of
the Constitution, is a political community of free citizens
. . . organized under a government sanctioned and limited
by a written constitution.” Texas v. White , 7 Wall.
700, 721 (1869). “ ‘Legislature,’ ” on the other hand,
generally means “ ‘the representative body which ma[kes] the
laws of the people.’ ” Smiley v. Holm , 285 U.S.
355 , 365 (1932) (quoting Hawke v. Smith , 253 U.S.
221 , 227 (1920)).

															To be sure, the precise constitutional
significance of the word “Legislature” depends on “the function to
be performed” under the provision in question. Smiley , 285
U. S., at 365. Because “the function contemplated by” the
Elections Clause “is that of making laws,” id. , at 366, this
Court’s Elections Clause cases have consistently looked to a
State’s written constitution to determine the constitutional actors
in whom lawmaking power is vested. See Arizona State
Legislature v. Arizona Independent Redistricting Comm’n ,
576 U.S. 787, 795–796, 814 (2015); Smiley , 285 U. S.,
at 363; Ohio ex rel. Davis v. Hildebrant , 241 U.S.
565 , 566–568 (1916).[ 8 ] The
definitions that most precisely explain this Court’s holdings were
given in a state-court case that anticipated Hildebrant and Smiley by several years: “[T]he word ‘Legislature,’ as used
in [the Elections Clause] means the lawmaking body or power of the
state, as established by the state Constitution,” or, put
differently, “that body of persons within a state clothed with
authority to make the laws.” State ex rel. Schrader v. Polley , 26 S. D. 5, 10–11, 127 N.W. 848, 850–851
(1910).

															If these premises hold, then petitioners’
conclusion follows: In prescribing the times, places, and manner of
congressional elections, “the lawmaking body or power of the state,
as established by the state Constitution,” id. , at 10, 127
N. W., at 850, performs “a federal function derived from the
Federal Constitution,” which thus “transcends any limitations
sought to be imposed by the people of a State,” Leser , 258
U. S., at 137. As shown, each premise is easily supported and
consistent with this Court’s precedents. Petitioners’ conclusion
also mirrors the Court’s interpretation of parallel language in the
Electors Clause[ 9 ] in McPherson v. Blacker , 146 U.S. 1 (1892): “[T]he words, ‘in such manner as the legislature thereof
may direct,’ ” “operat[e] as a limitation upon the State in
respect of any attempt to circumscribe the legislative power.” Id. , at 25.[ 10 ]

															The majority rejects petitioners’ conclusion,
but seemingly without rejecting any of the premises from which that
conclusion follows. Its apparent rationale—that Hildebrant , Smiley , and Arizona State Legislature have already
foreclosed petitioners’ argument—is untenable, as it requires
disregarding a principled distinction between the issues in those
cases and the question presented here. In those cases, the relevant
state-constitutional provisions addressed the allocation of
lawmaking power within each State; they defined what acts,
performed by which constitutional actors, constituted an “exercise
of the lawmaking power.” Smiley , 285 U. S., at 364; cf.
U. S. Const., Art. I, §7, cl. 2 (describing the processes
upon completion of which a bill “become[s] a Law”). In other words,
those cases addressed how to identify “the Legislature” of each
State. But, nothing in their holdings speaks at all to whether the
people of a State can impose substantive limits on the times,
places, and manners that a procedurally complete exercise of the
lawmaking power may validly prescribe. These are simply different
questions: “There is a difference between how and what .” J. Kirby, Limitations on the Power of State
Legislatures Over Presidential Elections, 27 Law & Contemp.
Prob. 495, 503 (1962).

															This is not an arbitrary distinction, but one
rooted in the logic of petitioners’ argument. No one here contends
that the Elections Clause creates state legislatures or
defines “the legislative process” in any State. Smiley , 285
U. S., at 369. Thus, while the Elections Clause confers a
lawmaking power, “the exercise of th[at] authority must” follow
“the method which the State has prescribed for legislative
enactments.” Id. , at 367. But, if the power in question is
not original to the people of each State and is conferred upon the
constituted legislature of the State, then it follows that the
people of the State may not dictate what laws can be enacted under
that power—precisely as they may not dictate what constitutional
amendments their legislatures can ratify under Article V. See Leser , 258 U. S., at 137.[ 11 ] Accordingly, if petitioners’ premises hold, then
state constitutions may specify who constitute “the
Legislature” and prescribe how legislative power is
exercised, but they cannot control what substantive laws can
be made for federal elections.

															The majority indicates that it does not perceive
this distinction between “substantive” and “procedural” rules, see ante , at 23–24,[ 12 ]
illustrating its doubts with a rhetorical question: “When a
governor vetoes a bill because of a disagreement with its policy
consequences, has the governor exercised a procedural or
substantive restraint on lawmaking?” Ante , at 24. The answer
is straightforward: The power of approving or vetoing bills is “a
part of the legislative process” because it is “a part in the
making of state laws.” Smiley , 285 U. S., at 368–369;
see also INS v. Chadha , 462 U.S.
919 , 933, 951, 954, 957, n. 22, 958 (1983) (repeatedly
referring to bicameralism and presentment as the “procedure” or
“procedures” of lawmaking). A Governor’s motives for vetoing
a certain bill are irrelevant to the effect of the veto as part of
the legislative process, just as the motives that may lead one
house of the legislature to reject a bill passed by the other house
are irrelevant to the effect of its doing so. Put simply, when this
power is conferred on the Governor of a State, it “makes him in
effect a third branch of the legislature .” T. Cooley,
General Principles of Constitutional Law 50 (1880) (emphasis
added); accord, Arizona State Legislature , 576 U. S.,
at 833 (Roberts, C. J., dissenting) (noting that “approving
[and] vetoing bills” are “legislative functions”); Chadha ,
462 U. S., at 947 (explaining that “lawmaking” is “a power
. . . shared by both Houses and the President”); La
Abra Silver Mining Co. v. United States , 175 U.S.
423 , 453 (1899) (noting that Presidential approval “is
legislative in its nature”); cf. 1 W. Blackstone, Commentaries on
the Laws of England 150 (1765) (“[T]he king is himself a part of
the parliament”). This is a question of who , not what , and thus is “a matter of state polity” as far as the
Elections Clause is concerned. Smiley , 285 U. S., at
368.

															But substantive constraints on what the
lawmaking power can do (gubernatorial approval included) demand an
entirely different justification—one that the majority never
provides. It does not overrule Cook and Thornton to
hold that the power to prescribe times, places, and manners for
congressional elections is an original power of the people of each
State. Nor does it hold that the people are themselves “the
Legislature” to which the Federal Constitution delegates that
power. See ante , at 17–18. Indeed, the majority devotes
little attention to the source and recipient of the power described
in the Elections Clause, notwithstanding their direct relevance to
the question presented.

															Instead, the majority focuses on the power of
state courts to exercise “judicial review” of Elections Clause
legislation. See ante , at 11–15, 26–30. But that power sheds
no light on the question presented. In every case properly before
it, any court—state or federal—must ascertain and apply the
substantive law that properly governs that case. Thus, the court
naturally must apply the Federal Constitution rather than any
statute in conflict with it. The court must also apply the state
constitution over any conflicting statute enacted under a power
limited by that constitution. Petitioners’ argument, however, is
that legislation about the times, places, and manner of
congressional elections is not limited by state
constitutions—because the power to regulate those subjects comes
from the Federal Constitution, not the people of the State. Right
or wrong, this question has nothing to do with whether state courts
have the power to conduct judicial review in the first place. To
say that “state judicial review” authorizes applying state
constitutions over conflicting Elections Clause legislation, ante , at 15, is simply to assume away petitioners’
argument.

															III

															The majority opinion ends with some general
advice to state and lower federal courts on how to exercise
“judicial review” “in cases implicating the Elections Clause.” Ante , at 28. As the majority offers no clear rationale for
its interpretation of the Clause, it is impossible to be sure what
the consequences of that interpretation will be. However, judging
from the majority’s brief sketch of the regime it envisions, I
worry that today’s opinion portends serious troubles ahead for the
Judiciary.

															The majority uses the separate writings in Bush v. Gore , 531 U.S.
98 (2000) ( per curiam ), as a loose touchstone for the
kind of judicial review that it apparently expects federal courts
to conduct in future cases like this one. On its face, this is an
awkward analogy, for there is a significant difference between Bush and Harper I . In Bush , the state court’s
judgment was based on an interpretation of state statutory law,
enacted by the state legislature. Thus, the relevant Electors
Clause question was whether, in doing so, the state court had
departed from “the clearly expressed intent of the legislature,”
531 U. S., at 120 (Rehnquist, C. J., concurring),
“impermissibly distort[ing]” the legislature’s enactments “beyond
what a fair reading required,” id. , at 115. In Harper
I , by contrast, there was no doubt that the state court
departed from the clearly expressed intent of the legislature; it
rejected the legislature’s enactment as unconstitutional.

															By doing so, today’s majority concludes, Harper I did not commit per se error, as the
Elections Clause permits state courts to apply substantive
state-constitutional provisions to the times, places, and manner of
federal elections. At the same time, state courts are warned that
they operate under federal-court supervision, lest they “transgress
the ordinary bounds of judicial review such that they arrogate to
themselves the power vested in state legislatures to regulate
federal elections.” Ante , at 29. Thus, under the majority’s
framework, it seems clear that the statutory- interpretation review
forecast in Bush (or some version of it) is to be extended
to state constitutional law.

															In this way, the majority opens a new field for Bush -style controversies over state election law—and a far
more uncertain one. Though some state constitutions are more
“proli[x]” than the Federal Constitution, it is still a general
feature of constitutional text that “only its great outlines should
be marked.” McCulloch , 4 Wheat., at 407. When “it is a constitution [courts] are expounding,” ibid. , not a
detailed statutory scheme, the standards to judge the fairness of a
given interpretation are typically fewer and less definite.

															Nonetheless, the majority’s framework appears to
demand that federal courts develop some generalized concept of “the
bounds of ordinary judicial review,” ante , at 28; apply it
to the task of constitutional interpretation within each State; and
make that concept their rule of decision in some of the most
politically acrimonious and fast-moving cases that come before
them. In many cases, it is difficult to imagine what this inquiry
could mean in theory, let alone practice. For example, suppose that
we were reviewing Harper I under this framework. Perhaps we
could have determined that reading justiciable prohibitions against
partisan gerrymandering into the North Carolina Constitution
exceeded the bounds of ordinary judicial review in North Carolina;
perhaps not. If not, then, in order to ensure that Harper I had not “arrogate[d]” the power of regulating federal elections, ante , at 29, we would presumably have needed to ask next
whether it exceeded the bounds of ordinary judicial review in North
Carolina to find that the specific congressional map here violated those prohibitions. After all, in constitutional judgments
of this kind, it can be difficult to separate the rule from the
fact pattern to which the rule is applied. We have held, however,
that federal courts are not equipped to judge
partisan-gerrymandering questions at all . Rucho v. Common Cause , 588 U. S. ___, ___ (2019) (slip op., at
30). It would seem to follow, a fortiori , that they are
not equipped to judge whether a state court’s
partisan-gerrymandering determination surpassed “the bounds of
ordinary judicial review.”

															Even in cases that do not involve a
justiciability mismatch, the majority’s advice invites questions of
the most far-reaching scope. What are “the bounds of
ordinary judicial review”? What methods of constitutional
interpretation do they allow? Do those methods vary from State to
State? And what about stare decisis —are federal courts to
review state courts’ treatment of their own precedents for some
sort of abuse of discretion? The majority’s framework would seem to
require answers to all of these questions and more.

															In the end, I fear that this framework will have
the effect of investing potentially large swaths of state
constitutional law with the character of a federal question not
amenable to meaningful or principled adjudication by federal
courts. In most cases, it seems likely that the “the bounds of or-
dinary judicial review” will be a forgiving standard in practice,
and this federalization of state constitutions will serve mainly to
swell federal-court dockets with state- constitutional questions to
be quickly resolved with generic statements of deference to the
state courts. On the other hand, there are bound to be exceptions.
They will arise haphazardly, in the midst of quickly evolving,
politically charged controversies, and the winners of federal
elections may be decided by a federal court’s expedited judgment
that a state court exceeded “the bounds of ordinary judicial
review” in construing the state constitution.

															I would hesitate long before committing the
Federal Judiciary to this uncertain path. And I certainly would not
do so in an advisory opinion, in a moot case, where “the only
function remaining to the court is that of announcing the fact and
dismissing the cause.” Ex parte McCardle , 7 Wall. 506, 514
(1869).

															I respectfully dissent. Notes 1 Technically, there were
two state-court actions below. These actions have been consolidated
at every stage and can be regarded as one action for all relevant
purposes. For simplicity, I will use the singular. Also for
simplicity, I focus here on plaintiffs-respondents’ challenge to
the 2021 congressional districting map, putting aside their
parallel challenges to the Assembly’s 2021 State House and State
Senate maps. 2 In this case, these two
inquiries are identical, making the majority’s bifurcated analysis
somewhat artificial. To say that an issue “will survive and require
decision,” as Cox Broadcasting uses the phrase, simply means
that it will not become moot, generally through some other issue
independently resolving the case (precisely what happened here).
See, e.g. , Pierce County v. Guillen , 537 U.S.
129 , 141, n. 5 (2003); Florida v. Thomas , 532 U.S.
774 , 779 (2001); Jefferson v. City of Tarrant , 522 U.S.
75 , 82–83 (1997); Cox Broadcasting, 420 U. S., at
478, 480–481, and n. 9. 3 Incidentally, the
majority seriously errs when it says that Harper III “reaffirmed” Harper I ’s Elections Clause holding, ante , at 9, apparently referencing Harper III ’s
statement that “[t]he General Assembly exercises [redistricting]
authority subject to the express limitations in our constitution
and in federal law,” ___ N. C., at ___, 886 S. E. 2d, at
422; see also ante , at 6. The only “express limitations” Harper III meant were “Article II, Sections 3 and 5,” of the
State Constitution, which address only state-legislative districts.
___ N. C., at ___, 886 S. E. 2d, at 422. As Harper
III acknowledged, “there is no provision in the state
constitution regarding redistricting of congressional districts.” Id. , at ___, 886 S. E. 2d, at 419. To the extent that Harper III suggests any view about whether such provisions
would be binding if they existed, it seems to suggest agreement
with petitioners. See ibid. (“The Federal Constitution
. . . commits drawing of congressional districts to the
state legislatures subject to oversight by the Congress of the
United States”). But, of course, Harper III had no need to
decide that question, because its state-law justiciability holding
fully determined the judgment in this action, thus mooting
petitioners’ alternative Elections Clause defense. 4 These facts refute the
majority’s dismissive reference to Harper III as “a distinct
decision concerning remedies,” as well as any suggestion that Harper III was “another case” than Harper I for res
judicata purposes. Ante , at 9–10 (internal quotation marks
omitted). Harper I and Harper III involved exactly
the same case, and there is “only one final judgment per case.” Chaka v. Lane , 894 F.2d 923, 924 (CA7 1990)
(Easterbrook, J.); see also Insurance Co. v. Dunn , 19
Wall. 214, 225 (1874) (“To say that there can be two final
judgments upon the same pleadings, in the same cause, in the same
court, . . . involves a solecism”). In this case, it was
not Harper I . 5 Nor did Harper
III , despite agreeing with petitioners in all other respects,
anywhere endorse their belief that some “order striking down the
2021 [Act]” would survive a decision overruling Harper I and
dismissing this lawsuit with prejudice. Ante , at 5 (internal
quotation marks omitted). To the extent that the majority imputes
that idea to Harper III , it again seriously misreads that
decision. See n. 3, supra . The majority states that Harper III “did not reinstate the 2021 congressional pla[n]
that Harper I had struck down.” Ante , at 5 (citing Harper III , ___ N. C., at ___–___, 886 S. E. 2d,
at 446–448). But the part of Harper III that the majority
cites had nothing to do with North Carolina’s congressional plan.
Instead, it considered whether two state-constitutional provisions,
which require that state-legislature districting plans
“remain unaltered” until the next census after they have become
“established,” N. C. Const., Art. II, §§3(4) and 5(4),
prevented the Assembly from revising the 2021 state plans that Harper I had rejected. See Harper III , ___
N. C., at ___–___, 886 S. E. 2d, at 446–448. In
determining that the 2021 state plans were never “established,” Harper III did not mean that Harper I somehow still
restrains those plans; rather, it indicated that those plans themselves do not restrain the Assembly going forward.
Absolutely nothing in Harper III suggests that the North
Carolina Supreme Court’s judgments act directly upon legislative
enactments—“striking them down” today and “reinstating” them
tomorrow—or that the 2021 congressional map remains subject to any
restraint left over from Harper I . 6 I assume here that the
majority is reading the provision correctly, though it is far from
clear that this is actually the case. As relevant, the provision
stated that the remedial redistricting plan “is effective
contingent upon its approval or adoption by the [trial court],”
“unless the United States Supreme Court or any other federal court
reverses or stays [ Harper I ] . . . (or
[ Harper I ] is otherwise enjoined, made inoperable, or
ineffective), and in such case [the 2021 Act] is again effective.”
2022 N. C. Sess. Laws 3, p. 10, §2. The majority’s
reading is based on three suppositions that it does not justify.
The first is that this provision has any reference at all to events
after the 2022 elections, to which the remedial Act was exclusively
directed. The second is that the dependent clause following
“unless” is applicable even though, under the main clause, the
remedial plan was never “adopt[ed]” by the trial court and thus
never became “effective.” The third is that Harper III did
not “otherwise . . . ma[ke]” Harper I “inoperable,
or ineffective.” 7 The idea of deciding an
issue to determine whether a statute shall be effective is not
unprecedented, but the precedents do not aid the majority. At
times, state legislatures have enacted laws contingent on
state-court opinions approving their constitutionality—in fact,
such legislation produced the first two opinions addressing the
Elections Clause question here (which both reached the opposite
conclusion from today’s majority). See Act No. 5, 1863 Vt. Acts
& Resolves p. 7, approved, Opinion of Judges , 37 Vt. 665
(1864); 1864 N. H. Laws p. 3061, approved, In re Opinions
of Justices , 45 N. H. 595 (1864); see also In re
Plurality Elections , 15 R. I. 617, 8 A. 881 (1887)
(similar situation and conclusion). Those opinions have always been
understood as “advisory opinions.” See, e.g. , In re
Constitutionality of House Bill 88 , 115 Vt. 524, 528–529, 64
A.2d 169, 171–172 (1949); Goodell v. Judith Basin
County , 70 Mont. 222, 231, 224 P. 1110, 1112 (1924). Such
advisory opinions may be authorized by some state constitutions,
but Article III gives this Court no such power. 8 The only complications
with this approach have arisen where a State Constitution did not
vest the legislative power wholly in a single representative body,
as the Federal Constitution appears to presuppose. Thus, in Hildebrant , the Court rejected as nonjusticiable an argument
“that to include the referendum within state legislative power for
the purpose of apportionment” was “repugnant to” the Elections
Clause. 241 U. S., at 569. Somewhat similarly, in Arizona
State Legislature , the Court faced a State Constitution “in
which the people of a State exercise legislative power coextensive
with the authority of an institutional legislature,” 576
U. S., at 819, with the majority “see[ing] no constitutional
barrier to a State’s empowerment of its people by embracing that
form of lawmaking,” id. , at 808–809. As relevant to
identifying the State’s “Legislature,” the majority opinion
emphasized that Arizona’s written Constitution “ ‘establishes
the electorate of Arizona as a coordinate source of legislation’ on
equal footing with the representative legislative body,” id. , at 795 (alteration omitted), and thus held that
“lawmaking power in Arizona includes the initiative process,” id. , at 793; see also id. , at 814. No such
complications exist in North Carolina, where the State Constitution
simply provides that “[t]he legislative power of the State shall be
vested in the General Assembly.” Art. II, §1. 9 The Electors Clause
provides that “[e]ach State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors” for the
election of the President and Vice President. Art. II, §1, cl.
2. 10 Contrary to the majority’s suggestion
of ambiguity, see ante , at 20, this statement can only have
meant that the state legislature’s power to direct the manner of
appointing electors may not be limited by the state constitution.
No other “limitation upon the State” is possible, for, as the McPherson Court said just a few sentences earlier, “the
constitution of the State” is the only “authority” that ordinarily
“limit[s]” “[t]he legislative power.” 146 U. S., at
25 . 11 The
majority states that Smiley “already distinguished” Leser as involving a nonlawmaking function. Ante , at
21. But Smiley distinguished the “electoral,” “ratifying,”
and “consenting” functions of state legislatures from their
“lawmaking” function under the Elections Clause, 285 U. S., at
365–366, only to explain why the last function must be “exercise[d]
. . . in accordance with the [State’s] method
. . . for legislative enactments,” id. , at 367,
including “the participation of the Governor wherever the state
constitution provided for such participation as part of the process
of making laws,” id. , at 370. Nothing in Smiley even
hints that a federally delegated power fails to “transcen[d]
limitations sought to be imposed by the people of a State” simply
because it is a lawmaking function. Leser , 258 U. S.,
at 137. 12 This
admission carries troubling implications for other fields, as
comparable “distinction[s] between procedure and substance [are]
not unknown in the law.” United States v. Kras , 409 U.S.
434 , 463, n. 6 (1973) (Marshall, J., dissenting). For example,
our habeas corpus jurisprudence has long distinguished
“substantive” constitutional rules from “procedural” ones. Schriro v. Summerlin , 542 U.S.
348 , 352, 353 (2004). Our sentencing appellate review
jurisprudence similarly recognizes a distinction between the
“procedura[l] sound[ness]” of a sentencing decision and “the
substantive reasonableness of the sentence imposed.” Gall v. United States , 552 U.S.
38 , 51 (2007). And, no less essential a statute than the Rules
Enabling Act presupposes a meaningful distinction between “rules of
practice and procedure” and matters of “substantive right.” 28
U. S. C. §§2072(a) and (b). Indeed, the constitutionality
of the Act rests upon this very distinction. See Hanna v. Plumer , 380 U.S.
460 , 470–472 (1965); Sibbach v. Wilson & Co. , 312 U.S.
1 , 9–10 (1941).