Gerrymandering squabble that puts democracy on the line up for SCOTUS showdown
High court will hear a major elections case that could hand state lawmakers unchecked power over elections
Constitutional law experts are bracing this week for a case on the Supreme Court’s docket that could alter a fundamental tenet of American democracy: the administration of free and fair elections.
“There's really no way to soft-pedal what North Carolina legislators are asking for in this case; what they want will mean election chaos,” Eliza Sweren-Becker, counsel for the democracy program at the Brennan Center for Justice at NYU Law, said during a preview for the case.
On Wednesday the justices will hear from North Carolina lawmakers fighting to keep a gerrymandered congressional map. Apart from its direct impact on voting in North Carolina for the foreseeable future, the implications of a ruling in the Moore v. Harper redistricting challenge are sure to be much broader.
In their crusade to avoid a court-mandated redraw of congressional districts, lawmakers have advanced a controversial theory that could upend elections. In its simplest form, the independent state legislature theory purports to give the state legislature unchecked supremacy over federal elections. This would leave state courts — which are normally inclined to check lawmakers' authority — powerless to intervene when lawmakers pass election bills that contravene the state constitution.
The independent state legislature theory comes from the U.S. Constitution’s elections clause, which says that federal elections shall “be prescribed in each state by the legislature thereof.” North Carolina lawmakers interpret the word legislature as referring only to the general assembly. The state claims meanwhile that legislature refers to the lawmaking system that includes judicial review by state courts.
In sum, the disagreement at the center of this case is the Constitution’s definition of legislature. Both sides claim to have text, history and precedent on their side. Republican lawmakers claim the text of the Constitution gives state legislatures the sole authority to regulate the times, places and manner of congressional elections.
“That textual choice has an obvious and unavoidable consequence: the power to regulate federal elections lies with state legislatures exclusively,” David Thompson, an attorney with Cooper & Kirk, wrote in the lawmakers’ brief.
While the lawmakers acknowledge that judicial review is assumed in the American constitutional system, they argue courts are open to hearing federal constitutional claims against actions under the federal Constitution and state constitutional claims against actions under the state constitution.
“But it simply does not follow that state constitutional limits may be enforced against acts governed by the federal Constitution,” Thompson wrote (emphasis in original).
On the other hand, the state claims the Constitution’s text, history and tradition say the exact opposite. If the court were to adopt lawmakers’ arguments, the state says it would be violating key principles of federalism and separation of powers as well as over a century of precedent.
“In the 233 years since North Carolina ratified the Constitution, the state legislature has never before claimed the power that its current leaders assert here: the power to prescribe federal-election regulations that violate the State’s constitution and are immune from judicial review,” Sarah Boyce, North Carolina deputy solicitor general, wrote in the state’s brief. “That is for good reason.”
The state notes a very recent ruling from the court in which the justices said state courts should handle congressional gerrymandering claims.
“Just three years ago, in a case involving a challenge to North Carolina’s congressional districts, every member of this Court agreed that partisan congressional gerrymandering claims were not doomed to ‘echo into the void’ because ‘state constitutions can provide standards and guidance for state courts to apply,’” Boyce wrote. “It is striking that Petitioners, who themselves prevailed in Rucho based in part on that assurance, now ask this Court to abandon it.”
North Carolina’s general assembly enacted the new congressional maps at issue after the 2020 census. While a three-judge court found the map reflected extreme “partisan redistricting" after a bench trial, it also considered the gerrymandering claims political questions that are nonjusticiable under the North Carolina Constitution. The state Supreme Court reversed, however, ruling the maps unconstitutional.
Lawmakers were ordered to create new maps that complied with the state constitution, but a three-judge panel found the assembly’s revised congressional map to be unconstitutional as well. The court then revised the map to make it comply with the state supreme court’s order.
In an effort to block the revised map, lawmakers turned to the Supreme Court in February seeking emergency relief. The justices declined to intervene against the objection of three of the court’s conservatives — Alito, Thomas and Gorsuch. Lawmakers then petitioned the court to add the case to their docket, and the justices agreed in June.
The justices' interest in hearing the case has resulted in outcry from many groups, warning the justices of the damage in store if it embraces the independent state legislature theory. The Conference of Chief Justices — a leading national voice on the role of state courts — offered the court an unbiased analysis of why the justices should give the theory credence by supporting neither party in the case. The conference rarely comments on cases, highlighting the high stakes of this challenge.
Retired federal Judge J. Michael Luttig — a widely respected conservative — joined the opposition to Republican lawmakers to disavow the independent state legislature theory. Steven Calabresi, a founder of the conservative Federalist Society and co-chair of its board — also filed a brief in opposition to the theory. Calabresi and other constitutional scholars say the lawmakers’ theory is inconsistent with originalism and claims the lawmakers fail to contend with the “mountains of evidence” against them.
“Elephants do not hide in mouse-holes, yet Petitioners would have us believe that T-Rexes lurk in insect-holes,” Calabresi’s brief states.
If the court were to adopt the independent state legislature theory, experts warn critical checks and balances could be upset and laws across the country would be eliminated.
“The theory threatens to undermine more than 170 constitutional provisions, more than 650 state statutes, hundreds of state court decisions including state Supreme Court decisions in all 50 states, and thousands of state regulations and policies that are essential for smooth elections like the one we just had,” Sweren-Becker said.
Election officials say the independent state legislature theory would make it extremely difficult — if not impossible — to make decisions affecting election administration.
“From a practical perspective, it invites both chaos and paralysis into the system in a way that election administration becomes unworkable to have different rules for different candidates in the conduct of that election on the same on the same ballot,” said Al Schmidt, former city commissioner and vice-chairman of the Board of Elections for Philadelphia.
Creating uncertainty in elections presents a big problem when election denialism is already rampant.
“That creates lots of opportunities for sort of mal-intentioned actors to sort of make false claims of fraud or sort of subvert the process and manipulate the process of their own aims,” Helen White, counsel at Protect Democracy, said.