Later this term, the Supreme Court will decide Moore v. Harper, a case that has been pitched as a seismic clash between two troubling positions. One side asks for state legislatures to be freed from the traditional safeguards of state constitutional law, while the other asks the Court to effectively ignore the text of the Constitution. The Court should look beyond these unsupportable positions and take a commonsense middle ground. Fortunately, one is readily available: an approach that maintains the Constitution’s emphasis on state legislatures without divorcing them from their traditional constitutional constraints.

The Constitution contains two clauses that give power over congressional and presidential elections to each state’s “legislature”—not to the states generally, but to each state’s “legislature.” Similarly, other clauses in the Constitution specifically refer to state executives, judges, and conventions, while others, by contrast, mention “states” without specifying a particular institution.

In Moore, the North Carolina legislature passed a law drawing new district boundaries, but the state supreme court concluded that the map was a partisan gerrymander in violation of provisions of the state constitution requiring that elections be “free” and that all people receive “equal protection of the laws.” It then adopted a map that had been commissioned by the trial court, which had appointed a team of experts independent of the litigants. The court’s map was less politically favorable to the leaders of the legislature who had orchestrated the original redistricting.

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