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U.S. Supreme Court wrangles over key question in democracy: Who has power over federal election rules?

North Carolina Republicans argue the state's Supreme Court went too far this year on redistricting. The U.S. Supreme Court's decision in the case could strip state courts of power.

Posted Updated

By
Travis Fain
, WRAL state government reporter
WASHINGTON — The U.S. Supreme Court heard arguments Wednesday in a North Carolina case that could redefine who has the power to decide election rules across the country, giving state legislatures leeway to set the terms of federal elections without oversight from their state courts.

Control over the full spectrum of laws governing federal elections is potentially at stake, including voting laws requiring photo identification, mail-in ballot rules and the power to draw congressional election maps. The scope of this lawsuit worries people who fear partisan intent and voter suppression will become more pronounced if the nation’s highest court sides with North Carolina Republicans pushing the case.

The case is Moore v. Harper, named for North Carolina Speaker of the House Tim Moore and Rebecca Harper, a voter who, along with several progressive groups, sued Moore and other Republicans last year over election maps drawn by the state legislature’s GOP majority. The state Supreme Court sided with Harper and threw those maps out, ultimately leading North Carolina Republicans to bring this case to the U.S. Supreme Court.

Oral arguments lasted three hours Wednesday, with each of nine Supreme Court justices probing the lines of power at issue and the roles that state legislatures, state courts, the U.S. Congress and federal courts are all empowered to play. An attorney for the groups opposing North Carolina lawmakers warned of chaos if the high court embraces the underlying “independent state legislature theory” in the case.

That theory holds that, because the U.S. Constitution says state legislatures and Congress determine the “times, places and manner” of federal elections, state courts can’t turn to state constitutions to declare those rules illegal and make substantial changes. A full embrace of this theory could radically limit the impact state constitutions can have on congressional election rules, including whether states can rein in partisan redistricting by adding prohibitions against the practice — which is used to boost one political party’s power in an elected body — to their constitutions.

“It is federal law alone that places substantive restrictions on states legislatures performing the task assigned them by the federal constitution,” David Thompson, who represents North Carolina Republican lawmakers in the case, told the court.

Accepting that argument would ignore two centuries of practice and the idea that state legislatures are governed by their state constitutions as interpreted by state supreme courts, Neal Katyal, an attorney for groups opposing Republicans in the case, argued.

“The blast radius of their theory starts with the size extra large … invalidating 50 state constitutions,” said Katyal, who was an acting U.S. solicitor general under former President Barack Obama.

Katyal’s argument found support among the court’s liberal minority. Some of the high court’s conservative justices questioned the potential reach of state lawmakers’ theory, signaling concerns with the potential impact of a broad ruling. The court has a 6-3 conservative majority, and four conservative justices had previously encouraged North Carolina Republicans to bring this case before the court.

It likely will be months before the court rules. Media outlets that cover the court day in and day out reported Wednesday that potential swing justices on the court, including Amy Coney Barrett and Chief Justice John Roberts, seemed skeptical of at least some of the GOP’s argument. At one point Roberts asked Thompson to lay out arguments for a narrow ruling less likely to impact a wide range of election laws across the country.

That pathway could turn on language in the North Carolina Constitution. In finding a partisan gerrymander and striking down lawmakers’ election maps earlier this year, the state Supreme Court relied on a relatively vague promise in the state constitution that elections will be “free” and “fair.” The court could find that while state courts can’t rein in the legislature in this case, state courts can still do so in other states with more specific prohibitions.

The GOP argument is broader, though, boiling down to a near ban on state courts striking down laws governing federal elections. But there is some wiggle room in the argument, and Thompson said Wednesday that there’s a difference between substantive changes and procedural ones.

“This is obviously substantive [in North Carolina], because there was a map and it was thrown in the trash,” he said.

The subject also came up when Roberts and other justices asked Thompson whether his theory allows governors to veto election laws. Thompson said it does, and he was pressed repeatedly on how that can be allowed if state court intervention isn’t.

“The governor is not part of the legislature,” Roberts said.

Thompson described gubernatorial vetoes as “procedural,” a “hoop that needs to be jumped through” to pass laws. That’s allowed, Thompson said, while “an effort to limit the content” of a law would not be.

Justice Ketanji Brown Jackson sparred with Thompson over the definition of a state legislature, saying it’s a state constitution that “tells us what the state legislature is and what it can do.”

“In other words, the authority comes from the state constitution, doesn't it?” she said.

Thompson said that’s not so in this case because it’s about rules governing federal elections, and the U.S. Constitution specifically assigns the power to write those rules to state legislatures and to Congress.

Katyal told justices that accepting this argument was like declaring that, “for two centuries, nearly everyone has been reading the clause wrong.”

“Frankly, I'm not sure I've ever come across a theory in this court that would invalidate more state constitutional clauses as being federally unconstitutional,” Katyal said. “Hundreds of them, from the founding to today.”

Justice Elena Kagan agreed, calling the argument “a theory with big consequences.”

“It would say that if a legislature engages in the most extreme forms of gerrymandering there is no state constitutional remedy for that, even if the courts think that that's a violation of the constitution,” she said. “It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections.”

Thompson said the bottom line is that the U.S. Constitution “requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections.”

“States lack the authority to restrict the legislature's substantive discretion when performing this federal function,” he said.

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