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North Carolina’s two most powerful legislators, House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tempore Phil Berger, R-Rockingham, are pushing a legal theory that would ensure legislative control of redistricting and election policy, arguing in an appeal to the U.S. Supreme Court that the General Assembly’s authority to write federal election laws should be unchecked by state courts.
At its most extreme, the legal claim that the state’s top Republican lawmakers are using would mean for the first time ever that the legal checks and balances of state courts on federal elections would disappear, according to Thomas Wolf, deputy director of the democracy program at the Brennan Center for Justice, a left-leaning public policy institute based in New York.
“We wouldn’t live in a democracy anymore,” Wolf said.
He fears a ruling in Moore’s and Berger’s favor would open the door to partisan gerrymandering and other anti-democratic measures that can otherwise be held in check by state courts. States often have more robust voting rights protections than the federal constitution, so courts are at times more amenable to protecting voting rights than the U.S. Supreme Court.
Moore and Berger appealed to the federal high court last week in an effort to overturn part of the N.C. Supreme Court’s February decision saying partisan gerrymandering is unconstitutional under state law. The state ruling limits the ability of any political party to draw itself into indefinite power by controlling how voters are grouped into districts.
But because Articles 1 and 2 of the U.S. Constitution say “legislatures” and not “states” or “state constitutions” when describing who makes election laws, Moore and Berger argue that only state legislatures and Congress can set federal election laws, overseen by federal courts.
“The Elections Clause does not give the state courts, or any other organ of state government, the power to second-guess the legislature’s determinations,” Moore and Berger argue in their petition to the U.S. Supreme Court.
If the U.S. Supreme Court accepts Moore’s and Berger’s petition to take up this case, the justices could dismiss the theory entirely, rule narrowly, or reshape the balance of power between the branches of government in every state in the country to set federal election laws.
Neither Moore nor Berger replied to questions for this story. The Republican National Committee, which filed legal briefs in support of a somewhat less extreme version of Moore’s and Berger’s claims, did not answer questions but did send a press release saying the filings were part of the committee’s efforts to “protect every aspect of the election process.”
Political struggles aside, the practical consequences of Moore’s and Berger’s argument would be to make elections much harder to run, according to experts like Wolf and the N.C. State Board of Elections.
When legislative Republicans asked the U.S. Supreme Court for emergency intervention so that the state could run 2022 congressional elections with legislator-drawn maps, which the court denied, the Board of Elections filed a legal brief arguing the theory “would threaten to invalidate the elections regimes in every State in the nation.”
A broad interpretation of Moore’s and Berger’s claims could result in different rules for state and federal elections, such as voters having to show ID to vote for president but not for governor. Or voters might have to register twice, once for state and once for federal elections, each with different registration requirements.
“Applicants’ interpretation of the (constitutional) Clause would, as a practical matter, necessitate the complete severance of federal elections and voter registration systems from state and local elections and systems moving forward,” the Board of Elections’ legal filing said.
The board’s stance is a bit extreme, though there’s a nugget of truth, according to Rick Su, UNC Chapel Hill law professor and expert on the balance of state and federal powers.
It all depends on the court’s willingness to review the appeal and, if so, the scope of its eventual ruling.
Wolf, in line with Su and legal experts Carolina Public Press interviewed from across the country, think either this case is not likely to be picked up by the U.S. Supreme Court or would be ruled on narrowly.
That analysis is based in part on recent precedent from the high court in its 2015 Arizona Independent Redistricting Commission and 2018 Rucho decisions, which already rejected aspects of Moore’s and Berger’s arguments.
That doesn’t necessarily mean the court won’t change its mind. The Arizona case was a 5-4 decision, and the court has three new justices and a 6-3 conservative majority now.
“The court may well ultimately do radical things in any number of different legal spaces,” Wolf said. “But it’s important to understand from the jump that what’s being proposed here is in fact radical.”
Full arguments and the court’s decision
The U.S. Supreme Court will likely announce whether it will take up this case in early May, per its scheduling rules.
Moore and Berger filed their petition to the court on March 21. The three groups that sued the state to block partisan gerrymandering have until April 20 to file their responses, as does the State Board of Elections which was also sued. Outside groups, like the Republican National Committee, can also file “amicus briefs,” or arguments in favor of one side or the other.
The U.S. Supreme Court will then wait at least 14 days before reviewing the petition and deciding whether to take it up, which it then would announce shortly thereafter.
It takes four votes for the Supreme Court to adopt a case. Unless justices change their opinions after reviewing the full filings, it seems the votes are there to review Moore’s and Berger’s appeal.
In similar cases and in this one, conservative Justices Samuel Alito, Neil Gorsuch and Clarence Thomas have expressed interest in the independent legislature theory. Brett Kavanaugh, another conservative justice, voted against taking up North Carolina’s case on an emergency basis but said the court would need to review the theory sooner or later and this might be a good case to do it.
If the court takes up the case, it would schedule a hearing date for sometime between October 2022 and April 2023.