Nation’s highest court wrestles with Moore v. Harper N.C. redistricting dispute | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The U.S. Supreme Court will likely wait until next June to rule on whether activist state courts can use vague provisions within a state constitution to throw out election maps drawn by a legislature. But nearly three hours of oral argument Wednesday in the Moore v. Harper case offered clues about the court's decision.

    The case stems from the N.C. Supreme Court's decision in February to reject a congressional election map drafted by state lawmakers. State courts eventually substituted a court-drawn map for the 2022 election.

    Legislative leaders argue that the federal Elections Clause should have blocked the Supreme Court's actions. That clause assigns decisions about federal election laws to state legislatures.

    "It is federal law alone that places substantive restrictions on states' legislatures performing the task assigned by the federal Constitution," argued legislators' attorney, David Thompson. "The Founders tasked state legislatures with federal functions that transcend any substantive limitations sought to be imposed by the people of the state."

    Justices in the U.S. Supreme Court's so-called liberal bloc expressed concern about stepping in to overrule North Carolina's highest court. Justice Elena Kagan specifically referenced the Independent State Legislature Doctrine, a name critics have attached to N.C. lawmakers' arguments.

    "This a theory with big consequences," Kagan said. "It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that's a violation of the constitution. It would say that legislatures can enact all manner of restrictions on voting - get rid of all kinds of voter protections."

    "It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated," Kagan added. "In all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances."

    Justice Ketanji Brown Jackson asked how a state legislature could avoid a review of its actions from a state court applying a state constitution. "When this entity would ordinarily be bound by all of the limitations in the state constitution in its legislative authority role, why suddenly in this context do you say, 'No, no, no.' All those other constitutional provisions that would bind or constrict legislative authority that the state gives you because you're the state legislature - why do those evaporate?"

    Attorney Neal Katyal, arguing for left-of-center activist group Common Cause, made repeated references to potential wide-ranging negative impacts of N.C. lawmakers' legal arguments. "The blast radius by their theory starts at the size extra-large," Katyal said. "It starts with invalidating 50 different state constitutions today."

    U.S. Solicitor General Elizabeth Prelogar raised similar concerns on behalf of President Biden's Justice Department. Prelogar contended that historical evidence contradicts N.C. lawmakers' arguments. "Petitioners' contrary theory rejects all of this history and would wreak havoc on the administration of elections across the nation," she said.

    But some justices expressed more sympathy for lawmakers' arguments.

    "It seems to me there are two types of problems. One, Is the state court actually interpreting a statute, or is it going too far afield to the point where someone might say it's not following the statute," said Justice Neil Gorsuch. "Then you have a separate problem of when a state court does not even try to interpret the law and just annuls the law outright. And that's this case."

    Justice Samuel Alito questioned the role of a partisan elected state Supreme Court in redistricting disputes. "There's been a lot of talk about the impact of this decision on democracy," he said. "Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts, where the candidates are permitted by state law to campaign on the issue of districting?"

    Attorney Donald Verrilli, representing state government interests outside the legislature, offered a way justices could decide whether a state supreme court strayed too far from its proper role.

    "You would ask whether the state decision is such a sharp departure from the state's ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law," Verrilli said.

    Alito subjected the N.C. Supreme Court's decision to that standard. "Boy, that seems awfully close to what you said would be a violation," he told Verrilli. "There's 100 pages of elaboration, but basically at the beginning they say what they're doing. Basically, they're saying, in no uncertain terms, 'Look, there's legislative malfunction here. The legislature has adopted political gerrymandering. It's really hard to amend the state constitution, and we don't have a referendum to correct it. So there's a big problem in the state, and we have to step in.'"

    Moore v. Harper resulted from the state Supreme Court's party-line 4-3 vote in February to throw out the General Assembly's map for 14 N.C. seats in the U.S. House of Representatives.

    The court's four Democrats overruled three Republican colleagues and rejected the GOP-led General Assembly's map. The four Democratic justices cited several provisions within the state Constitution, including the Article I provision that "All elections shall be free," to invent a new state constitutional ban on partisan gerrymandering.

    Democratic justices offered guidelines, but no firm rules, when it returned the case to a three-judge trial court. The trial judges rejected lawmakers' revised, or remedial, map. Then the judges substituted their own map. Three outside "special masters" working with consultants had drafted that map with no input from the public or the public's elected representatives.

    Put in place only for the 2022 election cycle, the map helped produce a 7-7 split between the two major parties in North Carolina's congressional delegation. Earlier court hearings had suggested that the state's political geography was likely to give Republicans at least an 8-6 advantage, with 9-5 or 10-4 GOP majorities possible in strong Republican election cycles.

    There's no official timeline for the U.S. Supreme Court to release its decision. Justices tend to rule on most high-profile cases near the end of a Supreme Court term in June.
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