In a late Friday afternoon filing as war raged in Ukraine and as President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to replace Justice Stephen Breyer on the U.S. Supreme Court, North Carolina Republicans dropped their own bombshell: a legal filing in the Supreme Court that if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. There are strong arguments Republicans should lose this case, but don’t count them out before a polarized and politicized Supreme Court.
A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court shut the federal courthouse door to partisan gerrymandering claims—claims that political parties drawing maps for electing members of Congress or state legislative bodies manipulated those maps purely for partisan gain. The Rucho court majority opinion by Chief Justice Roberts explained that there were other paths for reining in this conduct, including Congress passing legislation (as the Freedom to Vote Act would have done), the creation of independent commissions, and state courts. Indeed, the court noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing nefarious redistricting practices.
And that’s exactly what happened in North Carolina. The state Supreme Court recently held that the North Carolina Republican-controlled legislature’s gerrymandering of congressional and other districts was a partisan gerrymander grossly favoring Republicans, thus violating the state constitution’s provisions guaranteeing free elections. This ruling was going to lead to a much fairer map in a state that is mostly evenly divided between Democrats and Republicans.
Now the Republican-dominated General Assembly has struck back, raising what’s come to be known as the “independent state legislature” theory. This move was something I feared would happen weeks ago as Republicans were running out of options. They’ve argued in a new filing before the Supreme Court that the North Carolina Supreme Court does not have the power even in reliance on the state constitution and despite Rucho to rein in partisan gerrymandering of congressional districts when done by a state legislature.
As I explained about the “independent state legislature” theory last year in Slate:
Article II of the Constitution of the United States provides that state legislatures get to set the “manner” for choosing presidential electors. Similarly, Article I, section 4 gives the state “legislature” the power to set the time, place, and manner for conducting congressional elections, subject to congressional override. In practice, these clauses have been understood as allowing the legislature to set the ground rules for conducting the election, which are then subject to normal state processes: election administrators fix the details for administering the vote, state courts interpret the meaning of state election rules, and sometimes judges and officials decide when state rules violate state constitutional rights to vote.
For example, in the run-up to the 2020 election, the Pennsylvania Supreme Court decided that a state law requiring that mail-in ballots must arrive by Election Day to count violated the state constitution’s provisions protecting voting rights in light of the election being conducted during the pandemic. It extended the receipt of ballots by three days.
Republicans challenged that extension, arguing that the U.S. Constitution makes the legislature supreme, even if the state legislature would otherwise be violating the state constitution as determined by the state supreme court. This is the “independent state legislature” doctrine because it proposes that the legislature is supreme against all other actors that might run elections. This is a wacky theory of legislative power, but it is one that four Supreme Court justices (Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) expressed support for in various opinions during the 2020 elections, and it echoes an alternative argument that former Chief Justice William Rehnquist, joined by Justice Thomas and former Justice Antonin Scalia, made in the Bush v. Gore case ending the 2000 election and handing victory to Republican George W. Bush.
Justice Alito thought enough of the argument in the 2020 Pennsylvania case to order ballots arriving in Pennsylvania in the three days after Election Day to be set aside for possible exclusion from the count. Fortunately, there were only about 10,000 such ballots, and they did not determine the outcome of the presidential race (Biden won there by about 80,000 votes.)
Although those arguments were in the context of a state court applying a state constitution to deal with presidential election rules in supposed violation of Article II, in the North Carolina case we see the parallel argument in relation to Article I, section 4.
The Supreme Court accepting North Carolina’s argument would lead to some horrible consequences. First, it would neuter state courts’ abilities to rein in partisan gerrymandering, further undermining democratic representation. Second, the Supreme Court would be acting in a way that could tip control of Congress to Republicans.
But most importantly, siding with North Carolina could profoundly alter the balance of power between state courts and state legislatures. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights. This would apply not only to redistricting but to laws restricting registration and voting practices. It would allow hostile legislature to run roughshod over legislative rights. It could lead to major voter suppression policed by neither state courts nor federal courts, given the Supreme Court’s shrinking of the federal Voting Rights Act’s protections.
Now there are some good reasons to believe that the Supreme Court won’t bite in this case. First, this ruling would not only be in tension with Rucho’s recognition of state courts applying state constitutions as a means of policing partisan gerrymandering, which five conservative jurists signed onto just three years ago. It is also in tension with a 2015 case in which the Supreme Court upheld the right of the people acting through voter initiatives to take the power to draw congressional districts out of the hands of legislatures and put it in the hands of an independent commission. (Chief Justice Roberts wrote a bitter dissent for four justices in that case, and he could be itching to overturn it now that some of the justices in the majority in that case are no longer on the court).
An even stronger reason for believing that the North Carolina argument is weak in this case is that it was the state legislature itself that proposed the provision in the 1970 constitution guaranteeing these voting rights for North Carolina voters, which have now been interpreted by the state supreme court to ban partisan gerrymandering. As North Carolina elections guru Gerry Cohen explained, “Unlike the North Carolina Constitutions of 1776 and 1868 which were promulgated by independent conventions, the 1970 state constitution was enacted by the General Assembly.” How can the state supreme court have usurped the legislature’s power when the legislature itself brought this provision into the state constitution, knowing full well that the state constitution is interpreted by the state Supreme Court?
The independent state legislature theory is also wrong on the merits. As leading constitutional scholars Vikram Amar and Akhil Amar explain in a forthcoming paper, claims of unfettered power of state legislatures in federal elections are:
as an originalist matter, not just lawless—that is, not grounded in the law—but actually law-defying. They stand lawful federalism on its head. The theory invokes constitutional provisions designed to protect states against federal interference (including interference from federal courts) and instead uses these provisions to disrespect both the wishes of the state peoples who create, empower, and limit their legislatures, and also the wishes of the elected legislatures themselves. The theory gives near carte blanche to federal judges, when the key point of Article II’s election language (and the companion language of Article I) was to empower states.
And there’s yet another reason North Carolina should lose. In recent years the Supreme Court has relentlessly applied something I’ve dubbed the Purcell Principle: the idea that federal courts should not interfere with election processes when they are already underway because doing so could cause voter and election administrator confusion. Well, stopping things now in North Carolina would cause exactly the same thing. As Cohen tells me: “Candidate filing under the NC court ordered plan started yesterday. Two of the seven days of candidate filing has been completed. The state board of elections has updated all 8 million voter records with the new districts. Absentee ballots are to go out March 28 under the court plan for the May 17 primary.” As recently as this month, Brett Kavanaugh cited the Purcell Principle to block a state court’s ruling in another gerrymandering case based on a similar timeline and under much more dubious circumstances.
If the conservative supermajority of the Supreme Court applies the law fairly, North Carolina’s argument should be dead in the water. But these days, that’s a big “if.”