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Within a month, the U.S. Supreme Court is likely to decide whether it will pick up an appeal from North Carolina’s legislative leadership, House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tempore Phil Berger, R-Rockingham, that could change the way federal elections are run.
Earlier this year, state courts ruled that partisan gerrymandering, or grouping voters in certain districts to guarantee one party can elect more politicians than another, is unconstitutional under the North Carolina Constitution.
Moore and Berger opposed this decision but did not yet appeal. The ruling meant the legislature would have to redraw political maps and get them approved by the state courts. When they did that, the courts approved the maps for the state House and Senate but blocked the map for the state’s 14 U.S. congressional seats.
Instead, the courts drew the 2022 congressional maps and said the legislature can try again next year.
Moore and Berger alleged the ruling violated the U.S. Constitution and that state court judges were overreaching their power. To get around the state court ruling and win back the ability to gerrymander federal congressional districts, Moore and Berger needed to go to the federal courts.
“I will pursue all legal means to ensure that North Carolina’s elections are decided by North Carolinians and that the Constitution and rule of law are followed,” Moore said in a press release.
So, Moore and Berger appealed the decision to the U.S. Supreme Court. Now, the highest court in the land will decide whether it wants to wade into a thorny political debate about the balance of power between the states’ branches of government in how they pass and review laws governing federal elections.
There’s a “deep irony” to how this is playing out, according to UNC School of Law professor Andrew Chin, who has testified in previous redistricting lawsuits in North Carolina.
Republicans, who traditionally favor states’ rights arguments, are pushing a legal theory that would limit states’ power, Chin said.
Neither Moore nor Berger responded to questions for this story.
Moore and Berger’s argument, based on the independent state legislative theory, basically takes some power away from state courts and makes Congress and the federal judiciary the only possible checks on federal election laws passed by state legislatures.
When, or if, Congress will act
Taking state courts out of the review process for federal election laws “should be ringing alarm bells,” according to Victoria Bassetti, senior adviser to the States United Democracy Center.
“It’s not possible to run free, fair and effective elections without the judicial and executive branches having a substantial role,” Bassetti said.
But University of Iowa law professor Derek Muller is not so concerned. Should the U.S. Supreme Court take up the case, and even if it adopts the most radical interpretation of the independent state legislature theory, the ruling would likely introduce confusion into federal election laws, he said.
But state legislatures won’t be unchecked. Congress still has the final authority to set federal election law, as laid out in the U.S. Constitution, Muller said.
“Congress always has the power to pass statutes regulating federal elections,” Muller said. “And if states are really misbehaving, it’s incumbent on Congress to pass a statute.”
Congress failed to pass federal legislation earlier this year that would have outlawed partisan gerrymandering, so it is not clear when, or whether, Congress would intervene. But Muller said that omnibus, 800-page bill may not have been the best mechanism for Democrats to push for election reform that was opposed on party lines by Republicans.
“If there is a real threat to democracy in the states, especially if it’s one that’s happening on a bipartisan race-to-the-bottom basis, then maybe it’s going to be that members of Congress are going to be interested in fixing those rules,” Muller said.
Stuck in a quagmire
The argument Moore and Berger had to offer wasn’t a good one until the state courts redrew the congressional map, according to UNC School of Law professor Rick Su.
Their lawsuit is over the constitutional separation of power between state branches of government when writing laws for federal elections, so when the court drew the maps, typically a responsibility of the legislature, it may have gone too far.
Should the U.S. Supreme Court agree with that argument, it could rule that state courts can strike down laws like partisan gerrymandering, but they cannot take any affirmative action to solve the problem, Su said.
That interpretation could lead to a never-ending cycle of back-and-forth between the legislature and the courts, where the legislature continually proposes maps that are struck down by the courts. The way this works in practice, as the last decade of North Carolina’s political maps has shown, is that the courts would eventually have to accept some political maps just to have an election, even if the courts later decide the maps were unconstitutional.
“The way you would break that stalemate is if Congress writes a law,” said Andrew Hessick, professor at the UNC School of Law.
If Congress doesn’t act, then the failsafe doesn’t work, Hessick said.
These arguments are all happening in the abstract, a what-if scenario of whether the U.S. Supreme Court will take up the case from Moore and Berger, and whether it will accept their arguments, and if so to what extent.
But according to an opinion from conservative justice and Donald Trump appointee Brett Kavanaugh, the question is not if, but when.
“The issue is almost certain to keep arising until the Court definitively resolves it,” he wrote, when declining to take up the case on an emergency basis.
The high court should take up a case on the independent state legislature theory, Kavanaugh wrote, “either in this case from North Carolina or in a similar case from another State.” His would be the fourth and deciding vote to take up the case, as three other conservative justices have already expressed support for the claim.