Washington — On Thursday, the Supreme Court accepted a North Carolina Republicans election case. This could reduce the power of state courts in enforcing federal election rules and redrawing congressional districts.
This dispute concerns the “independent State Legislative” theory. It was invoked by Chief Justice William Rehnquist’s concurring opinions in Bush v. Gore, and brought up by former President Donald Trump (and other Republicans) during the 2020 Presidential election. The theory states that the Constitution gives state legislatures sole authority to regulate federal elections in the state they reside in, with no oversight from the state courts.
This dispute arises from North Carolina’s GOP-controlled General Assembly’s redistricting exercise after the 2020 Census. The state legislature adopted new congressional lines that gave Republicans an advantage for 10 out of 14 House seats. However, the state supreme Court rejected the map and found it to be a unconstitutional partisan-gerrymander.
A new set of voting lines was adopted by the General Assembly, but they were rejected again by a North Carolina court. A map that was created by a group special masters and assistants was approved by the court. This map, which was used for the 2022 election cycle, gave Republicans six seats to their advantage to Democrats’ four. The analysis of the Campaign Legal Center found the remaining four districts to be more competitive.
In February, the U.S. Supreme Court was asked to intervene by the State Republicans. They filed an emergency request to the court to stop the use of court-drawn maps in the forthcoming congressional elections. Although the high court denied the requests, three conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — stated that the court should have restored the state legislature’s district lines.
As a sign that the court was willing to hear the dispute Alito, Thomas, and Gorsuch wrote then that the case “represents an extraordinarily important and recurring issue of constitutional law,” namely the extent to which a state court can reject rules adopted in state legislatures for use in conducting federal election.
He wrote, “We will need to solve this question sooner than later and the earlier we do so the better.”
Justice Brett Kavanaugh also wrote that the issue raised by the Republicans’ emergency request was “almost certain to continue arising until it is finally resolved by the court.” Kavanaugh encouraged Kavanaugh to encourage the court to consider the North Carolina case, or another similar case from another state. This would allow the justices to hear arguments, and make a decision in its next term before the 2024 presidential elections.
In March, North Carolina Republicans requested the Supreme Court to determine whether state courts are authorized to modify regulations governing “times, places and manners” of congressional elections. They argued that this power is only available to the legislatures in each state under the Constitution’s Elections Clause.
“The state supreme Court’s usurpation authority — pursuant vague and indeterminate state constitution provisions securing freedom speech, equal protection — simply cannot be compared with the Elections Clause,” attorneys for GOP legislative leaders told court.
They argued that the Elections Clause “doesn’t allow the states to limit the legislatures constitutionally vested powers, or place them elsewhere in the state s governmental machinery as a matter state law.”
North Carolina election officials and voting groups challenged the 2021 congressional map that was drawn by the state legislature. They urged the Supreme Court to not take up the case. They claimed that the court-drawn lines of voting will only be in effect for the November general elections, and the case will therefore be dismissed by the Supreme Court.
Common Cause lawyers, which includes Neal Katyal, an ex-acting Solicitor General, stated that state courts can review state laws to make sure they are in compliance with the state constitution. This is true even if the rules concern federal elections.
They argued that the U.S. Constitution did not give impunity to a state legislature for violating its state constitution because it relates to congressional election.
Separately, state election officials told the Supreme Court that although the General Assembly is responsible for all aspects of the state’s election laws, it has decided to share the responsibility by “delegating certain power over federal election rules to nonlegislative agents.”
In October, the court will hear arguments.
