NC Republicans lose US Supreme Court case on legislatures’ power over federal elections

This story was originally published by NC Newsline, story by Lynn Bonner

Updated with comments. 

The US Supreme Court rejected North Carolina Republican legislators’ argument that the state courts cannot review laws legislatures pass governing federal elections. 

Republican legislators claimed the Elections Clause in the U.S. Constitution makes legislatures the sole state authorities on federal elections law,  including congressional redistricting.

Critics said the high court’s endorsement of the independent state legislature theory would cause chaos with state elections, with states trying to enforce a set of rules for state elections and another set for federal elections. The case drew national attention because of its potential to disrupt election laws around the country. 

In a 6-3 opinion, the nation’s high court rejected Republicans’ argument, known as the independent state legislature theory. 

Justice Brett Kavanaugh wrote a concurring opinion. Justices Clarence Thomas, Neil Gorsuch and Sam Alito dissented. Thomas wrote that the case was moot because the NC Supreme Court has already decided the question that brought Republican legislators to the US Supreme Court.  

“We are asked to decide whether the Elections Clause carves out an exception to this basic principle,” said the majority opinion by Chief Justice John Roberts.  “We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” 

Democrats from former President Barack Obama to Democratic leaders in the North Carolina legislature weighed in with statements supporting the decision.

“Today, the Supreme Court rejected the fringe independent state legislature theory that threatened to upend our democracy and dismantle our system of checks and balances,” Obama said on Twitter.

The opinion affirms the February 2022 decision by the Democratic majority on the NC Supreme Court that congressional districts the Republican majority created were extreme party gerrymanders that required revision. 

“The Supreme Court rejected the independent state legislature theory with vigor,” said Neal Katyal, the attorney who represented the non-government defendants in court. “The court adopted the arguments made by my client, Common Cause, in every material respect.”  Katyal answered reporters’ questions at an online news conference Tuesday afternoon. 

“I think it’s incredibly important that legislatures have the traditional check and balance that our Founders put on them, which means subject to state courts, subject to state constitutions. State legislatures, after all,  are creations of the state constitutions. The idea that they can act independently of them is really far-fetched and would do grave damage to our constitutional structure.”

Common Cause, the NC League of Conservation Voters, and a group of voters supported by the National Redistricting Foundation were defendants in the case. They sued Republican legislators in state court over gerrymandered districts, which ultimately led to the Republicans’ appeal to the US Supreme Court.

“We beat back the most serious legal threat our democracy has ever faced with today’s ruling in Moore v. Harper,” said Kathay Feng, vice president for programs at Common Cause. “Today’s ruling is a major victory for our rights as Americans to have a government that values every person’s voice and vote.”

In a statement, House Speaker Tim Moore said he was proud of the work he did to bring the case to the nation’s highest court.

Despite today’s opinion, North Carolina Republicans can redraw election districts without concern that state courts will consider claims of partisan gerrymandering.

Before the US Supreme Court could rule, North Carolina Republican legislators petitioned for and received the chance to reargue a redistricting decision the state Supreme Court issued in December that said the Senate districts used for the 2022 elections were unconstitutional.  

The state court majority in April overturned partisan gerrymandering opinions handed down last year by a Democratic court majority. The Republican-majority opinion said redistricting is the legislature’s job and the courts cannot not judge partisanship. 

“Fortunately, the current Supreme Court of North Carolina has rectified bad precedent from the previous majority, affirming the state constitutional authority of the NC General Assembly,” Moore said in his statement.

Roberts wrote that courts “may not transgress the ordinary bounds of judicial review,” but did not say whether the NC Supreme Court had overstepped. 

“We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause,” the opinion said. “The legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument.”

When pressed during December’s oral arguments whether the state’s Democratic justices has misinterpreted the state constitution, the Republicans’ lawyer “reiterated that such an argument was ‘not our position in this Court.’”

Lawyers on both sides of the case tried to use the historical record dating back to the founding of the country to bolster their arguments. 

Roberts’ opinion said that history supports judicial review. 

“State cases, debates at the Convention, and writings defending the Constitution all advanced the concept of judicial review. And in the years immediately following ratification, courts grew assured of their power to void laws incompatible with constitutional provisions,” he wrote. 

During oral arguments last year, Thomas, Alito, and Gorsuch indicated they supported the Republican legislators’ argument, while Justices Ketanji Brown Jackson, Sonia Sotomayor, Elena Kagan challenged their logic and interpretation of history. 

The NC League 0f Conservation Voters, one of the parties fighting partisan redistricting and the independent state legislature theory, praised the US Supreme Court decision, but called the state Supreme Court decision on redistricting “blatantly partisan.”

The US Supreme Court twice asked case participants this year if the state Supreme Court rehearing the gerrymandering case and later, siding with Republican legislators, made the federal case moot. 

The lawyer representing Republican legislators said the Supreme Court should decide the federal case even though North Carolina’s highest court had given them a victory. 

Republicans found agreement from Common Cause, which sued over the redistricting plans and opposed Republicans’ position on the independent state legislature theory. Common Cause wanted the U.S. Supreme Court to decide the question because it will keep coming up, its May letter said. 

Most of the parties who opposed state Republicans’ position told the Court the case was moot.

Attorneys for a group of voters who sued over the Republican redistricting plans said in a  recent letter to the Court that since the state Supreme Court had ruled in Republicans’ favor, Republicans no longer had standing and there is nothing more that they could win. Likewise, a lawyer for the NC League of Conservation Voters wrote the case is moot. 

Katyal said he was dismayed that allies tried to convince the justices not to decide the case.

“We thought there were six solid votes to reject the independent state legislature theory, and that’s one reason we were so dismayed to see people who were ostensible allies trying to get rid of this case when we thought the justices had given a pretty thorough trashing to the independent state legislature theory at the oral argument,” he said.

Common Cause also didn’t think it was right to sideline the case after it was argued, Katyal said.

“We’re very gratified that the United State Supreme Court agreed with us, not just on the merits about the independent state legislature theory, but also that they could reach the merits, that these games that were being played weren’t enough to remove the jurisdiction of the US Supreme Court to reach the merits,” Katyal said.

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