This story originally published online at NC Policy Watch.
A U.S. Supreme Court case originating in North Carolina could bring far-reaching changes to elections and the balance of political power in nearly every state.
North Carolina Republicans want the nation’s highest court to rule that state courts cannot throw out congressional districts that legislatures draw, arguing that the U.S. Constitution’s Elections Clause makes legislatures the sole state authority over federal elections.
The Constitution grants “the state ‘Legislature’ primacy in setting rules for federal elections, subject to check only by Congress,” lawyers for state Republicans wrote in brief filed with the high court.
The Supreme Court will hear oral arguments in Moore v. Harper on December 7, but a ruling may not be forthcoming until the spring of 2023.
Opponents include legal scholars across the political spectrum who say this argument, called the “independent legislature theory,” relies on a misinterpretation of the Constitution.
“There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent legislature that would foreclose judicial review of state legislature’s redistricting decisions,” conservative former federal judge J. Michael Luttig wrote in The Atlantic.
Luttig signed on as co-counsel representing Common Cause and other respondents arguing the Court should reject claims that legislatures don’t have to abide by their state constitutions when writing election laws.
Alex Keena, a political scientist at Virginia Commonwealth University, called the independent legislature theory “far-fetched.”
“We’ve been interpreting the Constitution one way for over 200 years and we all sort of agree that ‘legislature’ in the text means the entire state government apparatus,” said Keena, who studies gerrymandering. “Typically, you think the longer it’s accepted, the more weight it holds.”
“A giant train wreck waiting to happen”
The Court’s acceptance of the theory would have “really, really extreme consequences,” Keena said. “There would be no state that would be untouched by this.”
An analysis by the Congressional Research Service published last week describes the possible outcomes if the high court decides in favor of North Carolina Republicans.
A broad ruling would give legislatures the power to decide rules for federal elections, putting laws about voter ID requirements, early voting procedures, and redistricting beyond the reach of governors’ vetoes and state courts.
Unlike North Carolina, governors in 31 states can veto congressional redistricting plans, according to the Eagleton Institute of Politics at Rutgers University. And they use that power.
This year, Republican Florida Gov. Ron DeSantis vetoed the congressional plan drawn by the state’s GOP-dominated legislature. The legislature ended up adopting the districts DeSantis wanted.
Maryland’s congressional districts are the product of a battle between Republican Gov. Larry Hogan and that state’s Democratic-controlled legislature. Hogan vetoed the first congressional map, and the legislature overrode his veto. Republicans sued, and a judge threw out the plan calling it “an extreme partisan gerrymander.” The legislature drew a new plan, which Hogan signed.
The North Carolina case landed at the Supreme Court after a state court battle resulted in the state Supreme Court rejecting redistricting plans the legislature created.
Common Cause, the North Carolina League of Conservation Voters and Democratic voters backed by the National Redistricting Foundation sued in state court over redistricting plans the Republican-controlled legislature drew. The Democratic majority on the state Supreme Court ruled that the plans were unconstitutional partisan gerrymanders. Elections are being held using congressional maps a trial court adopted.
North Carolina is not alone in having state courts settle congressional redistricting fights.
New York’s highest court threw out the congressional plan legislators drew for that state after Republicans sued claiming violation of the New York constitution’s anti-gerrymandering provision. A special master drew New York’s congressional map.
The independent legislature theory deals only with rules for federal elections. Theoretically, states could have elections that run along parallel tracks, using one set of rules for state and local elections and another set for federal elections. But Gary Bartlett, a former North Carolina state elections director, said that would never work in his state.
“That would be a giant train wreck waiting to happen because of the complexities,” he said in an interview. Running elections under separate rules would be too expensive and hard to administer. “It brings an added layer of unnecessary work and confusion and cost,” he said.
The Congressional Research Service analysis said the Court could issue a narrower ruling that limits state court review of redistricting to particular circumstances — if a state constitution specifically references redistricting, for example.
Revisiting an already settled matter?
The North Carolina Republicans’ case brings ideas that Supreme Court justices have been thinking about for years back to the center of public attention.
In earlier redistricting cases, some of them fairly recent, the Court has interpreted “legislature” in the Elections Clause broadly, and approved or contemplated redistricting roles for other state entities.
In a 5-4 ruling in 2015, the Court said it was permissible for an independent commission in Arizona to draw congressional districts. The Court majority rejected the Arizona legislature’s argument the Elections Clause gave that power exclusively to state lawmakers.
“The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation,” Justice Ruth Bader Ginsburg wrote for the majority.
In a 2019 North Carolina case, the Supreme Court majority said that federal courts should not deal with partisan gerrymandering cases. Writing for the majority, Chief Justice John Roberts suggested gerrymandering opponents look to states for remedies. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh joined that opinion.
“It’s pretty remarkable in 2019 they all said state constitutions could be used to regulate partisan gerrymandering,” said Helen White, counsel for the nonpartisan, nonprofit organization Protect Democracy. “There’s no basis for changing their mind based on what they said in 2019.”
The Congressional Research Service explainer says that removing the opportunity for state court review would likely mean more federal court cases about states’ elections laws and congressional district plans.
White agreed that federal courts would see more cases concerning state elections laws.
Conflicts between legislatures and state agencies responsible for interpreting election rules could also end up in federal courts.
White said she would not predict what the Supreme Court would do but endorsing the independent legislature theory would be “a remarkable departure from prior decisions.”
The issue is not Democrat versus Republican or liberal versus conservative, White said, but is about keeping power in check.
“It’s about making sure that power—whoever is in charge—is checked by other state actors so it doesn’t get out of hand and run over the people themselves.”
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