North Carolina’s redistricting case before the Supreme Court could lead to profound change

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Legal battles over partisan and racial gerrymandering “are as North Carolina as barbecues, tobacco fields and hot, humid summer days,” says the executive director of the state’s Common Cause Chapter.

But the case, which the Supreme Court hears on Wednesday, brings stakes like no other.

The judges will address what both sides agree could be a fundamental, even radical changes in the way federal elections are conducted. It could give state legislatures sole authority to set the rules of the contests, subject only to congressional intervention, even though the legislators’ actions violate voter protections set forth in state constitutions and result in extreme partisan gerrymandering of congressional seats.

Advancing by North Carolina’s Republican legislative leaders, the “independent state legislature theory” could override a governor’s veto, end oversight of courts that enforce the state constitution and cast doubt on citizen-implemented initiatives aimed at removing partisan politics from map drawing and choice. rules.

If the argument is revolutionary, it is also simple. The leaders wrote in a brief to the court that the Constitution “grant state legislators the federal function of regulating congressional elections. . . . Because this directive is supreme over state law, states may not limit legislative discretion.”

But the Supreme Court has never ruled that the Constitution’s recognition that the Legislature directs the process should supersede the normal mechanisms of government, where legislatures are limited by the state constitution and overseen by state courts. Part of the argument Wednesday will focus on the meaning of the word “legislator” in the minds of the Founding Fathers.

The Supreme Court thrives on hypothetical situations. Alito’s latest sparked backlash.

The case’s significance is magnified by the nation’s polarized and disruptive political landscape, with hundreds of dissidents seeking public office, and former President Donald Trump and his allies waging long battles to undermine confidence in and reverse the results of the 2020 election. Last month’s election showed that control of Congress can depend on the manipulation of a handful of congressional district lines. Polls show record Democratic distrust of a Supreme Court dominated by Republican-nominated justices.

A study by the liberal Brennan Center for Justice said that accepting North Carolina’s argument, supported by other Republican-led states, would jeopardize hundreds of state constitutional provisions and state court decisions and more than a thousand delegations of authority to officials, commissions and others.

And because there is a similar reference to “legislature” in a companion provision of the U.S. Constitution regarding presidential elections, the stakes are even higher, the center’s report said. “The nightmare scenario is that a legislator unhappy with how an election official on the ground has interpreted his state’s election laws would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead choose his own list of electors. .”

Law professor John Eastman, who represented Trump in post-election challenges in 2020, advanced just such a theory.

Moore v. Harper challenges the North Carolina Supreme Court’s decision to replace a partisan congressional map with a judge found more consistent with the state constitution’s guarantee of free elections. It has attracted enormous and fierce interest – mostly from critics who warn the judges that they are about to make a big mistake. Only 16 of the nearly 70 amicus briefs filed with the Supreme Court sided with North Carolina’s legislative leaders.

The opposition includes not only civil rights organizations and democratically-led states, but also the chief justices of the nation’s state supreme court; credentialed, retired Republican judges; the co-founder of the conservative Federalist Society; former California Governor Arnold Schwarzenegger; and Republican election lawyer Ben Ginsberg—who, in the words of the Brennan Center report, “worked in Bush v. Gore case that planted the seed for the theory”, which forms the backbone of the challenge.

“This case is nothing less than a direct challenge to our system of checks and balances. It’s really a fringe theory,” said Eric H. Holder Jr., who served as attorney general under President Barack Obama.

“Fringe” is a word that is ubiquitous in applications. But four of the nine Supreme Court justices have already expressed interest in — if not outright support for — the state-legislator theory. Which begs the question: How much of an outlier can that be?

In the aftermath of the disputed 2000 presidential election, Justice Clarence Thomas joined in a concurring opinion in Bush v. Gore by then-Chief Justice William H. Rehnquist, who said the Constitution’s grant of power to legislatures to oversee elections limited the power of state judges to intervene. Justice Antonin Scalia was the only other member of the court to sign.

The doctrine comes from the United States Constitution’s Election Clause, which states that “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” There is similar language regarding the president-elect.

In the past, the language has been widely interpreted as giving power to states, shared by citizens and the legislative, executive and judicial branches.

But in voting disputes leading up to the 2020 presidential election, Thomas and Justices Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh expressed varying degrees of support for the view that state courts could not usurp the role of state legislatures in establishing rules for federal elections.

When North Carolina’s GOP leaders asked the US Supreme Court to block the introduction of the court-ordered congressional map, a majority of the justices refused. But Alito, Thomas and Gorsuch dissented, saying the legislature appeared to have the better argument.

“If the language in the election clause is to be taken seriously, there must be some limiting the authority of state courts to challenge actions taken by state legislatures in prescribing rules for the conduct of federal elections,” Alito wrote. “I think it is likely that the applicants will succeed in showing that the North Carolina Supreme Court overstepped those bounds.”

In challenges to voting rules changed by the courts, other justices expressed similar views. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote in a Wisconsin case.

Supreme Court Justice John G. Roberts Jr. was a dissenter when the Supreme Court ruled in 2015 that Arizonans could place the power to redraw districts in an independent commission. He accused the majority of using a “magic trick” to impose its policy preferences by interpreting “legislature” to mean state citizens.

But in 2019, with the decision on partisan gerrymandering outside the jurisdiction of federal courts, Roberts and other conservative justices said state courts could ensure the process did not become so extreme that it violated voters’ rights.

“Provisions of state statutes and state constitutions may provide standards and guidance that state courts may apply,” their opinion said.

A history of gerrymandering

It’s fitting that the high-stakes battle for electoral authority comes from North Carolina. It’s a purple state, with a legislature controlled by Republicans, a Democratic governor and attorney general, and a nonpartisan, elected state Supreme Court that returned to the GOP in November. Trump won 50 percent of the vote in 2020, compared to 49 percent for Joe Biden.

North Carolina Common Cause Executive Director Bob Phillips said there hasn’t been an election since 1971 where the state’s redistricting plans haven’t been challenged.

“In the decade following the 2010 redistricting cycle, every legislative and congressional election was run on cards that the courts eventually ruled unconstitutional,” he said in a briefing to reporters. “I’m not sure there are many states, if any, that can make that claim.”

Analysts said the map created by Republican lawmakers after the 2020 census would have given the GOP an advantage in 10 of 14 congressional districts.

the court, which at the time had a democratic majority, concluded that the maps “are unconstitutional beyond a reasonable doubt under the Free Elections Clause, the Equal Protection Clause, the Free Speech Clause, and the Freedom of Assembly Clause of the North Carolina Constitution.”

Under a new map that was imposed just for the 2022 election, the congressional delegation is divided 7 to 7.

“It is almost unfathomable to imagine what will be imposed on the citizens of North Carolina if our state courts are no longer a place where a bad congressional map can be challenged,” Phillips said.

The North Carolina legislature created a tribe for judicial review of redistricting challenges, which could also be a factor in this case.

Lee Goodman, a former chairman of the Federal Election Commission who filed a friend-of-the-court brief with the conservative American Legislative Exchange Council, said the country’s founding fathers were explicit in saying that election rules were the responsibility of lawmakers and not other parts of the country. state governments.

“When the founding fathers assigned responsibility for drawing rules for elections, including drawing district lines, they had to assign the role to some institution,” he said in an interview this week. “The Constitution could have assigned it to the states, but the Constitution specifically assigned the duty to the state legislatures—with a check by Congress.”

John Yoo, a law professor at the University of California at Berkeley, agreed that in such situations, state legislatures were not governed by state constitutions.

“When [U.S.] The Constitution uses the state legislature here, it actually commands the state to perform a federal function,” he said in an interview. “It’s as if the state legislature becomes part of the federal government for that one purpose.”

He argued the same logic found in a 1995 case that found states could not impose term limits on members of Congress.

Such views are contradicted in briefs from the other side.

“Any Justice should exercise extreme caution before accepting anyone of petitioners’ claims,” says a brief from legal scholars (and brothers) Akhil Reed Amar and Vikram David Amar, along with Steven Calabresi, one of the co-founders of the Federalist Society. “Their paper is full of gross misstatements and half-truths.”

The researchers argue that the public meaning of “legislature” was clear “at the time of ratification: A state’s “legislature” was not simply something created to make laws on behalf of the people; it was something created and limited by the state constitution. “

They add: “This basic premise—that state legislatures were creatures of state constitutions, creatures whose existence and form derived from state constitutions—is sufficient to defeat” the theory of the independent state legislature.

Patrick Marley in Madison, Wis., contributed to this report.

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