Washington — The Supreme Court on Thursday agreed to take up an elections case brought by North Carolina Republicans that could diminish the power of state courts to order changes to rules for federal elections and the redrawing of congressional districts approved by state lawmakers.
The dispute involves the “independent state legislature” theory, which was invoked by Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore and raised by former President Donald Trump and Republicans during the 2020 presidential election. Under the theory, the Constitution grants state legislatures the sole authority to regulate federal elections in their states, without oversight from state courts.
The dispute stems from the redistricting process undertaken by North Carolina’s GOP-controlled General Assembly after the 2020 Census. New congressional lines adopted by the state legislature gave Republicans an advantage for 10 of the state’s 14 House seats, but the state supreme court rejected the map, finding it was an unconstitutional partisan gerrymander under four provisions of the state constitution.
The General Assembly enacted new voting lines, which were again rejected by a North Carolina trial court. The court then approved a map created by a group of special masters and assistants, which for the 2022 election cycle gave Republicans six seats in their favor to Democrats’ four, with the four remaining districts more competitive, according to an analysis from the Campaign Legal Center.
State Republicans first asked the U.S. Supreme Court to intervene in late February, filing an emergency request for the court to block the use of court-drawn maps for the upcoming congressional elections. The high court, though three of the conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — said the court should’ve restored the district lines created by the state legislature.
In a sign of the court’s willingness to hear the dispute, Alito, joined by Thomas and Gorsuch, wrote then that the case “presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”
“We will have to resolve this question sooner or later, and the sooner we do so, the better,” he wrote.
Justice Brett Kavanaugh, too, wrote that the issue raised in the Republicans’ emergency request “is almost certain to keep arising until the court definitively resolves it.” Kavanaugh encouraged the court to take up either the North Carolina case or a similar fight from another state, allowing the justices to hear arguments and issue a decision in its next term, before the 2024 presidential election kicks into high gear.
North Carolina Republicans asked the Supreme Court in March to decide whether state courts have the authority to change regulations governing the “times, place and manner” of congressional elections, which they argued is a power given only to each state’s legislature under the Constitution’s Elections Clause.
“The state supreme court’s usurpation of that authority — pursuant to vague and indeterminate state constitutional provisions securing free speech, equal protection, and free and fair elections — simply cannot be squared with the lines drawn by the Elections Clause,” lawyers for the GOP legislative leaders told the court.
The Elections Clause, they argued, “does not leave the states free to limit the legislature’s constitutionally vested power, or place it elsewhere in the state’s governmental machinery, as a matter of state law.”
North Carolina elections officials and voting groups, which challenged in state court the congressional map drawn by the state legislature in 2021, urged the Supreme Court not to take up the case. They argued the court-drawn voting lines will only be in place for the November general election, so the case will be moot by the time the high court issues an opinion.
In a filing from Common Cause, lawyers for the group, including former acting Solicitor General Neal Katyal, said state courts are not forbidden from reviewing state laws to ensure they comply with the state constitution, even when the rules relate to federal elections.
“The U.S. Constitution does not grant impunity to a state legislature for violations of its state constitution simply because the legislation relates to congressional elections,” they argued.
State elections officials, meanwhile, separately told the Supreme Court that while the General Assembly “bears primary responsibility for the state’s election laws,” it has chosen to share authority by “delegating certain powers over rules governing federal elections to nonlegislative actors.”
The court will hear arguments in the case in its next term, which begins in October.