The Supreme Court in March gave a North Carolina Superior Court ruling in favor of the upcoming fall election. But three conservative justices on the court at the time said they doubted the role of state courts in adjudicating federal election rules, and a fourth said the issue was ripe for consideration.
Supreme Court rejects GOP request to overturn North Carolina congressional map
State courts play an important role in the post-2020 census congressional redistricting fight. Judges, for example, have taken control of Republican guerrillas in North Carolina and Pennsylvania and rejected maps drawn by Democratic-led legislatures in New York and Maryland.
But efforts to get the Supreme Court to review the doctrine of so-called independent state legislatures have been Republican-led efforts. Republicans control both chambers of 30 states.
The doctrine derives from the Elections Clause of the U.S. Constitution, which states that “the time, place, and manner in which elections for Senator and Representative shall be held shall be determined by the legislatures of the respective states.” While most often invoked in redistricting processes, the principle of independent state legislatures would also give lawmakers control over issues such as voter eligibility, mail-in voting and other electoral procedures.
In the past, this has been widely interpreted as empowering states, but in a shared way between residents and the executive, legislative and judicial branches.
In the election dispute leading up to the 2020 presidential election, Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh expressed support for the view that state courts cannot usurp the role of the legislature in regulations. Federal election rules.
In March, Alito said he would block a North Carolina court from passing a new congressional map, arguing the legislature had a better argument.
“If the wording of the election clause is taken seriously, the power of state courts to take counter-action in making federal election rules must be limited,” Alito wrote, joined by Thomas and Thomas. Gorsuch. “I think the applicant will likely succeed in showing that the North Carolina Supreme Court has exceeded these limits.”
Kavanaugh disagreed with blocking the state’s court action, saying it was too close to the election. But he said the issue should be considered next semester.
In a 2019 ruling, all members of the court — including Thomas, Alito, Gorsuch and Kavanaugh — appeared to have some role envisioned for the state court. In rejecting the federal court’s role in resolving partisan discrimination lawsuits, Chief Justice John G. Roberts Jr. noted that the challenge could go through state courts.
Roberts wrote for the majority in Rucho v. Common Cause that “state statutes and provisions in state constitutions can provide standards and guidance for state courts in regulating partisan discrimination.”
In 2015, a court ruled that the electoral provisions of the constitution did not bar Arizona voters from giving independent commissions, rather than the legislature, the power to draw congressional districts.
Judge Ruth Bader Ginsburg is the majority member of the Five-Arizona Legislature v. Arizona Independent Redistricting Commission.
Liberal Ginsburg, who died in 2020 and was replaced by conservative Justice Amy Coney Barrett, is likely to play a key role in the outcome of the new challenge.
North Carolina is a purple state with a Republican-controlled legislature, a Democratic governor and an elected state Supreme Court controlled by four Democrats and three Republicans. Donald Trump has won the state in 2020 by beating Joe Biden 50% to 49%.
Analysts say the map that Republican lawmakers will draw after the 2020 census will give Republicans an edge in 10 of the 14 congressional districts. The Democratic justice who was elected to the state Supreme Court said the redistricting map was partisan and “not explained by North Carolina’s political geography.”
The court concluded that the maps were “unconstitutional beyond reasonable doubt under the Free Elections, Equal Protection, Freedom of Speech, and Freedom of Assembly provisions of the North Carolina Constitution.”
The state’s Republican legislative leaders told the Supreme Court in a petition that state courts do not have the authority to make an after-the-fact review of the legislature.
“Through its plain text, the Election Clause creates the power to regulate when, where, and how federal elections are held, and then confers that power on each state’s ‘legislature’,” they wrote. “It does not leave states free to restrict The powers the legislature has constitutionally conferred, or placed elsewhere in the state agency, as a matter of state law.”
But the state’s Justice Department said North Carolina provided a poor example for the Supreme Court to review the issue. They say that’s because the legislature itself has granted state courts the role of redistricting.
“Twenty years ago, the North Carolina Legislature passed a law that explicitly gave state courts the authority to review legislative redistricting efforts,” the state’s brief said. “Meanwhile, the legislature specifically empowered state courts to ‘implement provisional constituency programs’ in the event of an appeal. Thus, North Carolina courts did not ‘make their own’ federal election rules — the state legislature itself devised an explicit consideration Statutory re-election system with court participation.”
The case is Moore v. Harper. It will be heard during the term that begins in October.
Ann E. Marimow contributed to this report.