NC on national stage as U.S. Supreme Court hears case that could shift power over elections
North Carolina's redistricting fight will return to the U.S. Supreme Court Wednesday, this time with national implications that are hard to predict.
Posted — UpdatedThe way some see it, democracy is on the line Wednesday when the U.S. Supreme Court gathers for arguments in yet another North Carolina case that could set wide-ranging precedent in American politics.
At the very least, control over how voting districts are drawn — a process that goes so far in deciding which political party controls the U.S. House of Representatives — and the power to set other rules in federal elections, like voter ID, will be before the court. North Carolina Republican lawmakers, exasperated by what they see as judicial overreach from the state’s court system, argue the U.S. Constitution doesn’t allow those courts to get involved.
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The case is Moore v. Harper, which makes a simple constitutional argument but is complex enough that experts don’t agree how large a footprint the high court’s decision might leave on American democracy. Some worry it could set the stage for a stolen presidential election, though GOP lawmakers pushing the suit say those concerns are overblown, and the extensive briefing in the case focuses on other issues.
The clearest and most immediate impact may come in redistricting.
That case led to this one: Moore v. Harper, which was brought by North Carolina House Speaker Tim Moore and other state Republican legislative leaders. They argue that the state’s highest court violated the U.S. Constitution when it threw out the Republican-drawn congressional map. They’re asking the nation’s highest court to forbid state court involvement as lawmakers redraw that map again, as soon as next year, and going forward.
If the U.S. Supreme Court agrees, the decision could bless gerrymandering around the country, allowing state legislatures controlled by either party more power to draw election districts as they see fit, even if they’re attempting to tilt control of Congress by drawing lines that all but ensure a particular partisan outcome.
The decision also could strip state courts nationwide of power to rein in legislatures as they pass laws on early voting, mail-in ballots, voter identification, or any other laws that lay out rules for federal elections.
"Legislative leaders are seeking confirmation by the U.S. Supreme Court that the Constitution means what it says, and an end to eleventh-hour judicial gerrymandering of federal congressional districts by the state courts," a spokesman for Senate President Pro Tem Phil Berger, who along with Moore and other GOP lawmakers, asked the U.S. Supreme Court to take this case.
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Allison Riggs, a lawyer for the Southern Coalition for Social Justice, represents groups who oppose Moore in Moore v. Harper. She said the case isn’t a case about a presidential election, but added: “I wouldn’t stand here and tell you it could have no implications.”
“This feels like it’s part of a larger story arc of North Carolina voters bucking under the restrictions of redistricting plans that are designed to polarize, separate, limit political power for some and maximize political power for others,” said Riggs, who has spent much of her career suing North Carolina lawmakers over voting maps and election laws. “So this, to us, feels very much like what we’ve been working and fighting over for almost the last 15 years in North Carolina.”
Obscure legal theory
The case started life as Harper v. Hall, one in a long line of lawsuits filed against the North Carolina General Assembly’s Republican majority. Voter Rebecca Harper and others alleged that the Republican leaders illegally drew state legislative and congressional districts to give Republican candidates an advantage.
In February, the state Supreme Court ordered new maps. Republican lawmakers turned to the U.S. Supreme Court, asking justices to block the state court’s decision before the May primary elections. The justices declined to do so, but several conservative justices — Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — encouraged North Carolina lawmakers to bring the matter back before the court after the elections, when the schedule allowed for more robust discussion.
The Republican argument boils down to this: That the U.S. Constitution grants authority to determine the “times, places and manner” of congressional elections to only two entities: state legislatures and Congress itself. Thus, lawmakers argue, when the state Supreme Court turned to language in North Carolina’s constitution to strike down maps drawn by the General Assembly, the state court violated the U.S. Constitution.
Groups opposing North Carolina Republicans in the case say it’s asinine to argue that the U.S. Constitution contemplates state legislatures operating on their own in this one aspect—federal elections—without being subject to their own state constitutions as interpreted by state courts.
Recent precedent
That decision led to this state-level fight over redistricting. Riggs, the Southern Coalition for Social Justice attorney, said last week that adopting GOP lawmakers' argument in the current case would fly in the face of what the high court said in Rucho.
“That seems like it’s not plausible,” Riggs said.
But in Rucho, Roberts noted that Florida’s constitution has a specific clause about drawing fair districts. North Carolina’s constitution has no such clause, and the Supreme Court here relied on the state constitution’s promise of free and fair elections to throw out GOP maps.
Massive attention
Moore v. Harper has attracted more than 60 amicus briefs—filings from people not directly involved but who wanted to weigh in. The volume speaks to high interest and high stakes.
The Republican National Committee and the North Carolina Republican Party back the GOP lawmakers’ argument, as does the American Legislative Exchange Council, a business-backed organization that pitches right-leaning legislation to state legislatures around the country.
“Congress … has regulated the manner of drawing congressional districts by federal statute,” Muller wrote. “Congressional redistricting in a state now takes place pursuant to this federal statutory directive, which contemplates a role for state courts applying state constitutions.”
Adopting this line of thinking would mean defeat for North Carolina Republicans. It’s also one of several ways the U.S. Supreme Court could narrow its ruling in the case, limiting its impact. Another, Muller told WRAL News, would be recognizing the difference between the Florida state constitution’s specific language on redistricting and vague language North Carolina’s state Supreme Court relied on in this case.
The court could say that, “if you’re taking a bunch of ambiguous words in the state constitution and ordering the state legislature around, that’s not appropriate,” Muller said. The U.S. Supreme Court could do that while still empowering courts in states with specific constitutional language to get involved.
A broader court decision might say state constitutions have “no place in limiting what the legislature does,” Muller said, adding that he doubts the court has an appetite for such a broad ruling.
Muller also said that the oft-stated concerns that this case may set the stage for a stolen presidential election seem overblown, though that doesn’t mean no one will try it.
“It would not give the state legislature the power to overturn a presidential election. Full stop,” he said. “Certainly it can create a pretext for people, but providing a pretext is very different from courts saying this is permissible.”
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