Schwarzenegger, others weigh in on closely watched NC redistricting lawsuit

Outside groups largely want the U.S. Supreme Court to reject the independent state legislature theory, which is central to a case focused on North Carolina's redistricting process.

Posted Updated

Bryan Anderson
, WRAL state government reporter
RALEIGH, N.C. — The U.S. Supreme Court has received dozens of amicus briefs since announcing it would take up a case over how voting lines are drawn in North Carolina and whether state courts have the ability to rein in the mapmaking powers of state lawmakers.

In recent weeks, influential groups and political figures — ranging from the American Bar Association, the Republican National Committee, chief justices from a variety of states and even Arnold Schwarzenegger — have submitted briefs offering their views on the theory that is central to the case: the so-called independent state legislature theory.

The theory argues that oversight of state elections laws ought to be left to the federal government and that state lawmakers have authority to draw their own voting lines without interference from state courts.

While some say the argument will rein in judicial overreach, others fear it could embolden lawmakers across the country to enact partisan gerrymanders that dilute the voting power of competing political parties.

State Republican legislative leaders argue congressional maps they pass shouldn’t be allowed to be overridden by the state Supreme Court. Instead, they say oversight of federal elections is reserved exclusively to the federal government.

“Those carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else,” attorneys representing GOP lawmakers argued in an August court filing. “The solution to election regulations thought to be problematic is to persuade one of these entities to change them or, failing that, to amend the Constitution to adopt a different allocation of power.”

Opponents worry such an argument would undermine the country’s system of checks and balances.

"Whether we’re talking about red or blue states, the dangers of a runaway, unresponsive, unaccountable legislature is always the same,” said Kathay Feng, national redistricting director of Common Cause in a Thursday news conference. “Checks and balances are fundamental to our government.”

Arguments before the U.S. Supreme Court are scheduled for Dec. 7

The U.S. Constitution's elections clause states that “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.”

A ruling in Republican lawmakers’ favor in the Harper v. Moore case could greatly curb a longstanding check against congressional maps drawn for pure partisan advantage. The U.S. Department of Justice is urging the Supreme Court to rule against the GOP lawmakers. If the high court adopts the independent state legislature theory, lawmakers in North Carolina and other states could be emboldened to create a more polarized electorate by diluting the voting power of opposing political parties.

The congressional maps in place in North Carolina this year were crafted by a group of independent redistricting experts after state courts rejected an initial map and subsequent redraw from state lawmakers. While the voting lines are only to be used in this year’s election, the U.S. Supreme Court ruling could have major implications for future maps.

Amicus briefs submitted to the nation’s highest court largely criticize the legal arguments being made on behalf of Republican House Speaker Tim Moore and Senate leader Phil Berger, who accuse state courts of usurping the will of the North Carolina General Assembly when striking down voting lines approved in the Republican-controlled legislature.

In filings to the U.S. Supreme Court, a few outside observers have supported GOP lawmakers’ arguments. Meanwhile, several groups and individuals have taken aim at the independent state legislature theory, arguing that it could thwart other checks on legislative overreach, including states that have gubernatorial vetoes of maps or independent redistricting commissions.

Here are some arguments being made to the U.S. Supreme Court:

American Bar Association: “The Framers understood that judicial review applies under any constitution to any legislative act pursuant to that constitution. The ISLT would create an unwarranted and dangerous anomalous exception to judicial review of state regulation of federal elections.”
Brennan Center for Justice at New York University School of Law: “The ‘independent state legislature theory’ is radically at odds with how elections have been run in the United States for centuries. It would exclude state constitutions, courts, governors, voters, executive officials, and election administrators from helping regulate federal elections, or at least throw into doubt their ability to do so. It would endanger or disrupt vast amounts of law, policy, and practice. And it would plunge elections nationwide into chaos.”
United States Department of Justice: “The Elections Clause directs state legislatures to make laws governing congressional elections. Text, historical context, longstanding practice, and this Court’s precedent all establish that the Clause does not thereby authorize legislatures to ignore the state constitutions that created them. Instead, the Elections Clause takes state legislatures as it finds them—subject to state constitutional constraints and state judicial review.”
Former California Republican Gov. Arnold Schwarzenegger: “Petitioners’ theory of the Elections Clause posits that state legislatures may act independently of these state constitutional provisions when exercising powers under the Elections Clause. This theory would eliminate state efforts to curtail partisan gerrymandering, imperiling the checks and balances needed for a functioning redistricting process that places voters’ interests over legislators.’ It would upset this Court’s longstanding precedent upholding States’ checks and balances on the exercise of legislative power for congressional redistricting—through popular referenda, gubernatorial vetoes, and independent redistricting commissions.”
Conference of Chief Justices: “While the text of the Elections Clause requires that state legislatures prescribe the laws governing federal elections, it does not otherwise displace the States’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.”
America First Legal Foundation: “For too long, state judiciaries have ignored the Elections Clause and refuse [to] acknowledge the limits that it imposes on their congressional map-drawing powers. Worse, they have acted as though a constitutional violation or a legislative impasse allows them to impose whatever congressional map they want, without any need to derive their map-selection powers from a legislative enactment or federal constitutional provision. It is long past time for this Court to rein in these lawless and unconstitutional practices.”
Constitutional law professors Akhil Amar and Vikram Amar, and Steven Calabresi, co-chairman of the Federalist Society: “If the federal Constitution had intended to severely limit a state’s future ability to reallocate power between its own governmental branches, or between its own voters and elected officials—or if the federal Constitution meant to give a faraway federal Court lacking expertise in state law carte blanche over ordinary state-law issues—then we would expect to see abundant evidence for these pulverizations of the bedrock principles of 1776. … Elephants do not hide in mouse-holes, yet Petitioners would have us believe that T-Rexes lurk in insect-holes.”
Republican National Committee, National Republican Congressional Committee and North Carolina Republican Party: “Given the overblown reaction this case has engendered, it bears reiterating that the narrow issue presented turns on a state court’s unabashed seizure of quintessentially legislative power. Stated more bluntly, Petitioners want this Court to rebuke the unconstitutional excesses of North Carolina’s judicial branch. It does not follow that confining the North Carolina Supreme Court to its judicial role means that the North Carolina General Assembly may exercise its legislative role unrestrained.”
North Carolina Democratic state Sen. Dan Blue and state House Rep. Robert Reives: “The North Carolina courts’ enforcement of the state constitution in congressional redistricting is fully consistent with this Court’s precedent interpreting the Elections Clause.”
Democratic U.S. Sen. Amy Klobuchar of Minnesota and 19 other U.S. senators: “Congress’ role under the Elections Clause is not a substitute for the ordinary system of separation of powers that state constitutions, many of which predate the federal Constitution, establish to check state legislative overreach.”


Copyright 2023 by Capitol Broadcasting Company. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.