Top state judges across US oppose NC lawmakers in Supreme Court

The Conference of Chief Justices, a bipartisan group representing the top judicial official in each of the 50 states, filed an amicus brief Tuesday in the case of Moore v. Harper, which was born out of North Carolina’s recent battle over redrawn voting maps.

North Carolina House Speaker Tim Moore, Senate Leader Phil Berger and other high-ranking Republican lawmakers are arguing in favor of a theory that has also been advanced by lawyers for former President Donald Trump during his legal battles over results of the 2020 election.

The so-called independent state legislature theory holds that state courts don’t have the authority to review or overturn state laws that govern federal elections, including election laws and redistricting.

Theory adherents argue that because the federal constitution grants authority to state legislatures to regulate the time, place and manner of elections, state executive and judicial branches should have no say in the process, even if the laws the state legislature passes violate the state constitution.

According to their brief, the U.S. Constitution’s elections clause gives the U.S. Supreme Court, where Republican appointees currently hold the majority, the authority to review state supreme court decisions in matters involving state election laws. They’re asking the U.S. Supreme Court to overturn the N.C. Supreme Court’s ruling.

Berger and Moore didn’t immediately respond to requests for comment on Wednesday.

“The unfettered policymaking engaged in by the North Carolina courts here plainly exceeds the limits of permissible delegation on any understanding,” lawmakers argue in court documents. “It is one thing for a state to effectively delegate to the state courts the authority to enforce specific and judicially manageable standards, such as contiguousness and compactness requirements. 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—a matter that this court has held to be ‘an unmoored determination’ that depends on ‘basic questions that are political, not legal.’”

The precedent referred to is Rucho v. Common Cause, a 2018 U.S. Supreme Court ruling on a different North Carolina redistricting case, in which the high court ruled that it does not have authority over partisan gerrymandering.

In 2015, in a case regarding redistricting in Arizona, the U.S. Supreme Court at that time rejected the independent state legislature theory. However, at least four conservative justices on the current court seem open to the idea and agreed to the plaintiffs’ request to hear the case this fall.  

The Conference of Chief Justices, representing the power of state courts, is opposed to the theory. In its amicus brief, attorneys for the group argue that the theory’s interpretation of the Constitution’s elections clause is overly narrow and would negate the checks and balances of the three-branch system of government.  

Also, the CCJ’s amicus brief points out, North Carolina’s redistricting law specifically provides for judicial review of redistricting.

“It prescribed state court review for redistricting laws under the state constitution and established the state court’s remedial authority, including interim redistricting plans,” the group wrote. “This legislative decision cannot be characterized as unconstitutional delegation.

“Judicial review is a check on lawmaking, but it is an exercise of judicial power, not lawmaking power; and it was expressly authorized by the legislature,” the brief continues. “This Court appears to have so recognized in Rucho, when it emphasized that state judicial review would provide a check on partisan gerrymandering in the States.”

The CCJ doesn’t frequently file amicus briefs in high court cases. Its brief in Moore v. Harper is one of 22 amici briefs filed to date in the case. Many of the others, largely from conservative groups and groups affiliated with Trump, are in favor of the independent state legislature theory.