WASHINGTON — The Supreme Court’s conservative majority hinted Wednesday they may rule narrowly for Republican state lawmakers in North Carolina who are claiming a right to set election maps and rules without review by state courts.
The justices heard arguments in a partisan gerrymandering case that raised a major question of election law.
At issue was whether the state’s lawmakers have exclusive power to draw congressional election maps that give their party a lopsided advantage, or if those maps are subject to invalidation or modification by the state Supreme Court.
There was no clear consensus on how to rule, but the six conservative justices suggested they were more inclined to limit the power of state judges, rather than limit the discretion of partisan lawmakers.
North Carolina’s GOP leaders have accused state judges of interfering with the constitutional authority of state lawmakers. They noted the Constitution says the rules for electing members of Congress “shall be prescribed in each state by the legislature thereof.”
Lawyers representing Democratic Party leaders and voters in the state called that theory radical and said it would overturn basic principles of checks and balances.
In their comments, Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett seemed to search for a compromise, a ruling that would allow state courts to review election plans, but require judges to defer to lawmakers.
Under this approach, a state court could block an election map, but then send it back to the legislature to try again rather than impose changes itself. This would mean the state Supreme Court retained its authority to enforce the state’s constitution, but the legislature could make the final decision on an election map.
For the past decade, North Carolina has seen a series of fierce partisan fights over redistricting. The state’s Republican leaders insisted on drawing maps that would give the GOP control over most of its seats in Congress and the state Legislature, even if the state’s voters were almost evenly split. The state Supreme Court had a majority of Democratic appointees, and they not only struck down the state maps earlier this year, but assigned election experts to draw new ones.
When the GOP’s appeal came to the U.S. Supreme Court, it raised the so-called independent state legislature theory. Republicans argued the Constitution gives the legislature the independent and exclusive authority for setting rules on casting and counting ballots as well as drawing election maps.
That bold claim raised raised alarms for many, coming just two years after then-President Trump and some of his allies sought to overturn his defeat by having partisan state legislators declare him the winner.
For most of American history, however, it has been the understanding that state judges as well as governors also play an important role. State judges and state Supreme Courts routinely oversee voting disputes for federal, state and local elections.
A separate but similar provision of the Constitution applies to presidential elections. It says “each state shall appoint” the electors who vote for president “in such manner as the Legislature thereof may direct.”
That provision is not at issue in the North Carolina case, and all states by law choose their electors based on the popular vote.
But some election law experts fear a Supreme Court ruling putting more power in the hands of state legislators could encourage some to claim the power to appoint alternate electors pledged to support the legislators’ presidential candidate rather than the one chosen by voters. Such a move was advocated by some Trump supporters in 2020.
During Wednesday’s argument, three prominent Democratic lawyers warned the justices against endorsing the theory that all power over federal elections rests in the hands of state legislatures.
Attorneys Neal Katyal and Donald Verrilli, who both served in the Obama administration, and current Solicitor General Elizabeth Prelogar said adopting the theory proposed by the GOP could overturn two centuries of precedent and cause chaos in resolving ordinary disputes over voting rules.
It could even lead to two sets of election rules in a state, one for federal elections and separate rules for state and local elections.
The three attorneys may have succeeded in their main goal, even if the court eventually rules narrowly for the North Carolina Republicans.
Kavanaugh pointed out that former Chief Justice William Rehnquist raised the independent legislature theory during the infamous Florida recount following the 2000 presidential election that resulted in the Bush vs. Gore decision. Rehnquist said the Florida state judges appeared to be ignoring or revising aspects of the state election law which, if so, may violate the U.S Constitution.
But Kavanaugh told GOP attorney David Thompson on Wednesday that “your position seems to go further than Chief Justice Rehnquist. ... He seemed to acknowledge that state courts would have a role in interpreting state law.”
Roberts said he was wary of unchecked legislative power, but told the Republican attorney he was interested if “there’s a narrower, alternative ground to decide the case in your favor which would allow some substantive state restrictions to be enforced” by judges.
Lawyers on both sides noted the Constitution says Congress may set rules for federal elections and override laws set by the states. But the House and Senate have not agreed on legislation that would rein in partisan gerrymandering.
A separate but similar provision of the Constitution applies to presidential elections. It says “each state shall appoint” the electors who vote for president “in such manner as the Legislature thereof may direct.”
That provision is not at issue in the North Carolina case, and all states by law choose their electors based on the popular vote.
But some election law experts fear a Supreme Court ruling putting more power in the hands of state legislators could encourage some to claim the power to appoint alternate electors pledged to support the legislators’ presidential candidate rather than the one chosen by voters. Such a move was advocated by some Trump supporters in 2020.
The case would also affect state redistricting efforts.
Last year, the GOP-controlled Legislature in North Carolina drew an election map that would have all but assured Republicans would win 10 of 14 House seats. Common Cause and others sued, and the state Supreme Court, which had a majority of Democratic appointees, struck down the map because it gave an “extreme partisan advantage” to the Republicans.
State judges chose a panel of election experts who drew a new map which would more fairly reflect the state’s political makeup.
In February, North Carolina Republicans, led by House Speaker Timothy Moore, sent an emergency appeal to the Supreme Court asking the justices to block the state ruling and restore the GOP-friendly map. The justices refused to intervene, over dissents by Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.
Justice Kavanaugh said it was late to change the districts again prior to the midterm election, but he expressed interest in deciding the underlying legal question.
In June, the court voted to hear the case of Moore vs. Harper and decide whether state judges may strike down an election map drawn by the Legislature.
When voters went to the polls in North Carolina last month, they elected seven Republicans and seven Democrats.
