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

By: - June 27, 2023 1:14 pm

U.S. Supreme Court | Jim Small/States Newsroom

The U.S. 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.

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

An outdated legal theory could let Republicans subvert election results and redistricting processes

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 court in their favor.

“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.”

The case drew national attention because of its potential to disrupt laws for federal elections across the country.

The leader of Common Cause North Carolina, which was a party in the case, said in a statement that the opinion is a victory for American democracy.

“Today, the U.S. Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators, Bob Phillips, Common Cause North Carolina executive director, said.  “Now, we must ensure our state courts fulfill their duty to protect our freedoms against attacks by extremist politicians.”

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.

Roberts wrote that courts “may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

“We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause. 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.’”

Former US Attorney General Eric Holder applauded the decision, but said in a statement that the question should not have made it to the high court in the first place. Holder is chairman of the National Democratic Redistricting Committee.  Voters who challenged the congressional districts as partisan gerrymanders were supported by the National Redistricting Foundation.

“By rejecting the independent state legislature theory, the Supreme Court preserved the vital role state courts play in protecting free elections and fair maps for the American people,” Holder said in a statement. “This is a victory for our system of checks and balances, the cornerstone of American democracy.

“Make no mistake, this appeal and the truly fringe, truly ideological theory it espouses should never have been brought before our nation’s highest tribunal in the first place, and it demonstrates the lengths to which too many in the Republican Party are willing to go in order to bend—even break—our democracy in order to hold onto illegitimate power.”

Democrats from U.S. Senate Majority Leader Chuck Schumer to Democratic leaders in the North Carolina legislature weighed in with statements supporting the decision.

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 state Supreme Court’s new Republican majority is unlikely to intervene in congressional redistricting this year.

Before the US Supreme Court could rule, Republican legislators petitioned for and received a 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 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.

The NC League 0f Conservation Voters, one of the parties fighting partisan redistricting, said the US Supreme Court did the right thing, but the state Supreme Court didn’t when the majority overturned last year’s decision on partisan gerrymandering.

“Today, in a case that NCLCV has been fighting since 2021, the U.S. Supreme Court rejected the independent state legislature theory and affirmed that, in a constitutional democracy, the courts do have a role in redistricting and protecting free and fair elections,” Dan Crawford, the organization’s lobbyist, said in a statement.  “This draws into sharp contrast the blatantly partisan decision by the North Carolina Supreme Court to concede total power to the legislature to select their own voters. Without the ability for every voter to choose their representatives, our environment and all North Carolinians will be at risk to deep-pocketed polluters and power-hungry politicians.”

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 wants 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, including the US Solicitor General, 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.

This story first ran in the Advance’s sister outlet, NC Newsline.

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Lynn Bonner
Lynn Bonner

Investigative Reporter Lynn Bonner joined NC Policy Watch in October 2020 after 26 years as a reporter at The News & Observer. She covered the state legislature and politics for 20 years, and wrote extensively about mental health, state Medicaid policies and spending, and public education. Before coming to North Carolina, she wrote for newspapers in New England.

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