NC on national stage as U.S. Supreme Court hears case that could shift power over elections
The 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.
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.
Every 10 years, state lawmakers redraw voting districts to account for population changes. The party in power at the legislature leads the effort, often resulting in maps favorable to that party. In recent years, North Carolina’s maps have been challenged in state courts. The most recent lawsuit went to the North Carolina Supreme Court, which threw out the Republican legislative majority’s latest maps, saying for the first time that they represented an illegal partisan gerrymander under the North Carolina’s constitution.
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.
Worries about presidential elections, which are governed by a provision of the U.S. Constitution not directly involved in this case arose because the GOP argument in this case is grounded in a legal theory that former President Donald Trump’s legal team pointed to in trying to convince GOP state legislatures to subvert the 2020 presidential election. Last month, former federal Judge J. Michael Luttig, a Republican appointee to the bench, called Moore v. Harper “the most important case for American democracy in the almost two and a half centuries since America’s founding.”
North Carolina Republicans dismiss presidential election concerns, and legal scholars are split over how valid those worries are. State GOP lawmakers say their focus is on keeping the North Carolina Supreme Court from meddling in legislative business. The state Supreme Court that ruled on recent redistricting cases had a 4-3 Democratic majority. The party balance will be 5-2 in favor of Republicans in January, when GOP candidates who won in the state’s recent partisan judicial elections are sworn in.
"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.
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.
Republican leaders did, and this summer the high court agreed to take the case, now named Moore v. Harper. Harper has backing from the National Democratic Redistricting Committee, which is headed by former U.S. Attorney General Eric Holder. The North Carolina League of Conservation Voters and Common Cause, both progressive nonprofit groups active on redistricting issues for years in North Carolina, also oppose GOP lawmakers in the case.
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.
“The 2022 election and all upcoming congressional elections in the State were not to be held in the ‘manner’ ‘prescribed … by the Legislature thereof,’ but rather in the manner prescribed by the state’s judicial branch,” GOP lawmakers wrote in their petition to the U.S. Supreme Court. “It is obvious on the face of the Constitution that this result is irreconcilable with that document’s allocation of authority over federal elections.”
The argument is based on something called the independent state legislature theory, decades-old legal theory over checks and balances. It holds 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. Long considered a fringe theory inconsistent with centuries of standard practice, it rose to prominence after the 2020 elections. Members of Trump’s legal team used the theory in pressing Republican-controlled states to ignore presidential election results, despite knowing, based on emails obtained by The New York Times, that the plan was dubious.
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.
“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this court’s precedent, and so potentially damaging for American democracy,” opponents argued in an October brief.
Recent precedent
These groups say the North Carolina General Assembly itself recognized the court system’s authority when it set into law procedures judges must abide by when reviewing redistricting lawsuits. And they say the U.S. Supreme Court put its imprimatur on the concept in 2019, as part of another North Carolina redistricting case, Rucho v. Common Cause. In that case the high court declined to take up the matter of partisan gerrymandering but said, in an opinion by Chief Justice John Roberts, that those concerns need not “echo into a void.” Roberts noted that states themselves could limit partisan gerrymandering and pointed to Florida, where the state Supreme Court had struck down a congressional districting plan on state constitutional grounds.
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.
“It is one thing for a state to effectively delegate to the state courts the authority to enforce specific and judicially manageable standards,” Republican lawmakers argued in an August court filing. “It is quite another for the court to seize the authority to find, hidden within the folds of an open-ended guarantee of ‘free’ or ‘fair’ elections, rules governing the degree of ‘permissible partisanship’ in redistricting.”
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.
The opposing argument drew far more support, with briefs filed by the U.S. Department of Justice and various redistricting reform advocates, including actor and former Republican California Gov. Arnold Schwarzenegger. Several retired admirals, generals and secretaries of the U.S. armed forces filed a brief, saying North Carolina lawmakers were advocating “a profoundly destabilizing and undemocratic approach to election administration.”
Some amicus briefs offered the court a way to decide this case without opining on the constitutional issue raised. University of Iowa law professor Derek Muller argued in his brief that the matter has already been addressed by Congress, which, along with state legislatures, is empowered by the U.S. Constitution to set federal election rules.
“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.
Experts at the Brennan Center, a progressive policy group affiliated with New York University's law school, have repeatedly sounded the alarm on the potential impact of the case, arguing, among other things, that the high court’s decision could nullify state constitutional bans on gerrymandering, like the one in Florida.
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.”
