Anti-gerrymandering protest in Washington, DC. | Olivier Douliery, Getty Images.
The U.S. Supreme Court announced Thursday that it will hear a North Carolina redistricting case that one prominent constitutional scholar described to the New York Times as “an 800-pound gorilla brooding in the background of election law cases working their way up from state courts.”
In Moore v. Harper, North Carolina Republicans argue that it was and is unconstitutional for state courts to review redistricting maps produced by the General Assembly — even if those maps violate other constitutional protections.
The basis of the Republican lawmakers’ argument is something called the “independent state legislature doctrine,” which is based on a literal reading of the U.S. Constitution’s Elections Clause, which reads: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
Numerous scholars, advocates and jurists have long rejected such an argument and, as recently as 2019 in the Rucho v. Common Cause case (in which the high court said it lacked authority to strike down North Carolina maps for partisan gerrymandering), a majority of the Court seemed to make clear that state courts are an appropriate venue for such challenges to proceed.
Since that time, however, members of the Court’s conservative wing have expressed a desire to revisit the issue. In March, when North Carolina Republican plaintiffs sought (unsuccessfully) to obtain an emergency order from the Court blocking the state Supreme Court’s adoption of a new congressional district map, Justices Alito, Thomas and Gorsuch indicated that they would have granted the request. In addition, while he rejected the idea of granting the emergency request, Justice Kavanaugh indicated that he thought the issue should be considered in the fall term that commences this October.
Anti-gerrymandering and pro-democracy advocates, who have repeatedly decried the independent state legislature doctrine as “radical” and “dangerous,” were swift to issue denunciations of the Court’s order.
In a joint statement issued by North Carolina advocacy groups, Bob Phillips, executive director of Common Cause North Carolina described the effort by Republican lawmakers to insulate redistricting efforts from state judicial review as “a radical power grab [in which] self-serving politicians want to defy our state’s highest court and impose illegal voting districts upon the people of North Carolina.” Phillips vowed to continue to combat the GOP effort, saying “we must stop this dangerous attack on our freedom to vote.”
Allison Riggs, Co-Executive Director and Chief Counsel for Voting Rights at the Southern Coalition for Social Justice, which is representing Common Cause in the case, put it this way:
Today’s news from the U.S. Supreme Court makes one thing clear: this fall, the future of multiracial democracy is at stake. In Moore, North Carolina lawmakers argue they essentially get a ‘free pass’ to violate state constitutional protections against partisan gerrymandering when drawing districts which undeniably hurt voters. We will vigorously fight these claims and instead advocate on behalf of North Carolinians to prove what the ‘independent state legislature theory’ has been all along — a fringe, desperate, and anti-democratic attack by a gerrymandered legislature.
Critics also noted that a ruling upholding the GOP stance could have major implications beyond redistricting. In a statement, based on a detailed memo it published earlier this month, the Brennan Center for Justice said that “If it were to become law, the so-called independent state legislature theory would make it much easier for state legislatures to suppress the vote, draw unfair election districts, enable partisan interference in ballot counting, and more.”
The memo, authored by attorneys Ethan Herenstein and Thomas Wolf, observed that:
The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election. And, according to former federal judge J. Michael Luttig — a distinguished conservative jurist — the theory is a part of the “Republican blueprint to steal the 2024 election.”
These high stakes underscore the significance of the challenge the independent state legislature theory presents to the courts.
The Supreme Court’s next term commences October 3, but no date has yet been set for arguments in the case.
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