WASHINGTON — At least six Supreme Court justices sound skeptical of making a broad ruling that would leave state legislatures virtually unchecked when making rules for elections for Congress and the presidency.
In arguments Wednesday, both liberal and conservative members of the high court appeared to take issue with the main thrust of a challenge asking them to essentially eliminate the power of state courts to strike down legislature-drawn, gerrymandered congressional districts on grounds that they violate state constitutions.
Republicans from North Carolina who brought the case to the high court argue that a provision of the U.S. Constitution known as the elections clause gives state lawmakers virtually total control over the “times, places and manner” of congressional elections, including redistricting, cutting state courts out of the process.
The Republicans are advancing a concept called the “independent legislature theory,” never before adopted by the Supreme Court but cited approvingly by four conservative justices.
A broad ruling could threaten hundreds of election laws, require separate rules for federal and state elections on the same ballot and lead to new efforts to redraw congressional districts to maximize partisan advantage.
“This is a theory with big consequences,” Justice Elena Kagan said, allowing for the “most extreme forms of gerrymandering from legislatures.”
Justice Amy Coney Barrett said the outcome sought by North Carolina Republicans would leave judges with “difficult lines to draw.”
The court’s decision in the North Carolina case also might suggest how the justices would deal with another part of the Constitution — not at issue in the current case — that gives legislatures the authority to decide how presidential electors are appointed. That provision, the electors clause, was central to efforts to try to overturn the outcome of the 2020 presidential election in several closely contested states.
The North Carolina state Supreme Court struck down districts drawn by Republicans who control the legislature because they heavily favored Republicans in the highly competitive state. The court-drawn map used in last month’s elections for Congress produced a 7-7 split between Democrats and Republicans.
North Carolina is among six states in recent years in which state courts have ruled that overly partisan redistricting for Congress violated their state constitutions. The others are Florida, Maryland, New York, Ohio and Pennsylvania.
State courts have become the only legal forum for challenging partisan congressional maps since the Supreme Court ruled in 2019 that those lawsuits cannot be brought in federal court.
Chief Justice John Roberts, writing for the court and joined by four other conservative justices, noted that state courts remained open. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote, in an opinion joined by Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas.
But Alito, Gorsuch and Thomas wrote in March that they would have allowed the Republican-drawn map to be used this year. Alito wrote for the three justices that “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”
Kavanaugh has separately written about the need for federal courts to police the actions of state courts when it comes to federal elections, citing an opinion by three conservatives in the Bush v. Gore case that settled the 2000 presidential election. Thomas was one of the three justices on that 22-year-old opinion, but the court decided the case on other grounds.
In North Carolina, Republican lawmakers won’t have to wait for the court’s decision to produce a new congressional map that is expected to have more Republican districts.
Even as Democrats won half the state’s 14 congressional seats, Republicans seized control of the state Supreme Court. Two newly elected Republican justices give them a 5-2 edge that makes it more likely than not that the court would uphold a map with more Republican districts.
North Carolina Attorney General Josh Stein released the following statement after the U.S. Supreme Court hearing in the case (Moore v. Harper):
“Today’s case is among the most consequential affecting our democracy in the history of our nation. The core question is this: who has political power in America? The people or the politicians? My office argues, and the North Carolina Supreme Court agrees, that the people possess all political power in North Carolina. The people of North Carolina must choose their representatives, not the other way around.
“Unfortunately, North Carolina’s legislative leaders have embraced the radical so-called Independent State Legislature theory. They argued this morning that they can draw congressional districts however they wish – even in violation of the will of the people. For them it’s raw power over democracy, politicians over people.
“I believe in the truth of our state Constitution – ‘All political power is vested in and resides in the people …[and] is founded upon their will only.’ With this case, the Supreme Court faces a true test of its commitment to our democracy. I hope and pray that the justices pass that test and do not fail our nation.”
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