By Travis Fain, WRAL state government reporter
The U.S. Supreme Court on Thursday agreed to hear a case out of North Carolina that could sap the judicial branch’s power to reject state election laws, potentially giving state legislatures across the country, or Congress, the final say on such laws.
The case arose out of North Carolina’s latest redistricting cycle, which saw the state Supreme Court’s Democratic majority reject voting maps drawn by the General Assembly’s Republican majority. State GOP lawmakers petitioned the U.S. Supreme Court to get involved and decree that state courts don’t have that power because of a key clause in the U.S. Constitution.
The case has been closely watched by experts around the country, including some who say a decision by the nation’s highest court could give state legislatures nationwide the power to pass suppressive voting laws and more heavily gerrymandered voting districts without court supervision, tilting elections in favor of whichever political party holds a legislative majority.
There are also concerns among some elections law observers that, under this doctrine, state legislatures will try to throw out the results of presidential elections in a scheme similar to one that some of then-President Donald Trump’s supporters proposed to overturn the 2020 election results. Experts at the Brennan Center for Justice, a progressive nonprofit policy organization affiliated with New York University’s law school, described it as “the nightmare scenario.”
Ethan Herenstein and Thomas Wolf, who focus on voting rights for the center, have said the adoption of the underlying theory in this case, called the independent state legislature theory, would “radically change our elections.”
Senate President Pro Tem Phil Berger, who is part of the case, said he’s looking for a ruling to give state legislatures the final word on congressional election maps, not to address presidential elector slates.
“I don’t see what we’re asking the Supreme Court to take up as being that broad,” he said in an interview Thursday.
A hearing date has not yet been scheduled for the case, Moore v. Harper. The case spawns from previous litigation in which a North Carolina voter sued top Republican leaders in the North Carolina legislature, including Speaker of the House Tim Moore, over the General Assembly’s election maps.
Moore said Thursday that the case was critical to election integrity in the state and has implications for the security of elections across the country. “I am confident that this court recognizes what our state Supreme Court failed to recognize—that the United States Constitution explicitly gives the General Assembly authority to draw districts and that authority must be recognized,” he said in a statement.
Bob Phillips, executive director of plaintiff Common Cause NC, called legislative leaders’ efforts a “radical power grab.” “Self-serving politicians want to defy our state’s highest court and impose illegal voting districts upon the people of North Carolina,” Phillips said in a statement Thursday. “We will continue to stand up for the people of our state and nation as this case goes to the U.S. Supreme Court.”
State Republican leaders see the case as way to stop the state courts from usurping legislative authority. The elections clause of the U.S. Constitution is clear, they argue, when it says “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.”
In the latest redistricting cycle, the North Carolina Supreme Court’s 4-3 Democratic majority rejected the legislature’s maps and ordered new ones drawn by a group of experts assembled by a lower court judge.
“If a redistricting process more starkly contrary to the U.S. Constitution’s Elections Clause exists, it is hard to imagine it,” GOP lawmakers argued in asking the U.S. Supreme Court to take up the case. “By its plain text, the Elections Clause creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the legislature’ of each state. It does not leave the states free to limit the legislature’s constitutionally vested power.”
Lawmakers acknowledged in that filing that in “limited circumstances a state legislature’s election rules are subject to review or invalidation by entities other than Congress,” but only if the legislature’s decisions conflict with some other provision of the U.S. Constitution.
“No such enumerated, federal constitutional right is at issue here,” they wrote. “Instead, the state supreme court justified its nullification of the General Assembly’s regulation of the manner of congressional elections by pointing to a hodgepodge of state constitutional provisions.”
Berger, R-Rockingham, said in a statement Thursday that state courts have long ignored the the U.S. Constitution “and have redrawn congressional districts to satisfy their own personal political agenda.
“It’s time for the U.S. Supreme Court to determine once and for all whether state legislatures, not judges pretending to be legislators, are the final authority at the state level for drawing congressional maps,” he said.