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Biden administration urges Supreme Court to reject 'extraordinarily disruptive' theory in major elections case

The court hears oral arguments in December in a Republican attempt to strip state courts of the authority to oversee election-related issues.
People wait in line outside the Supreme Court on Oct. 11, 2022.
People wait in line outside the Supreme Court on Oct. 11.Stefani Reynolds / AFP - Getty Images file

WASHINGTON — The Biden administration has urged the Supreme Court to reject a novel legal theory pushed by Republicans in an upcoming elections case from North Carolina that could strip state courts of their ability to oversee federal election-related disputes.

Solicitor General Elizabeth Prelogar wrote in a brief filed late on Wednesday that the case being argued on Dec. 7 would have "extraordinarily disruptive consequences" if the court, which has a 6-3 conservative majority, embraces the "independent state legislature" theory. The court's ruling, due by the end of June, could have a major impact on the 2024 presidential election.

The Justice Department brief was one of dozens filed Wednesday in support of the state of North Carolina and voting rights advocates, who are defending a state Supreme Court decision that threw out a congressional district map drawn by the Republican-controlled legislature. The state court, basing its decision on protections in North Carolina's Constitution, adopted a map drawn by experts that is less favorable to Republicans.

Republican lawmakers argue that the state court did not have the authority to adopt the new maps because, in the federal elections context, legislatures have unique power derived from the Elections Clause of the U.S. Constitution. That provision gives state legislatures the power to set the "time, place and manner" in which federal elections are held in that state. Versions of that argument were pressed by former President Donald Trump and his allies in 2020 in challenging changes to election procedures made by courts during the Covid pandemic and also as part of their unsuccessful efforts to overturn the results of the presidential election.

The arguments pressed by Republicans “would mean that constitutional provisions in nearly every state — many of them dating to the founding — were either wholly invalid or could be applied only to state elections,” Prelogar wrote.

If the Supreme Court rules for Republicans, elections would be thrown into chaos because each state could have different rules for federal and state elections, she said, adding that such a ruling "risks magnifying confusion and uncertainty for both voters and elections officials." A ruling along those lines would affect not just redistricting disputes but also any election laws that the legislature enacts on such issues as mail-in voting and early voting.

The North Carolina Republicans' argument has faced pushback from some in the GOP, including former California Gov. Arnold Schwarzenegger, who filed his own brief backing the state. Former conservative federal Judge Thomas Griffith and former senior Republican officials also filed a brief. Another former conservative federal judge, J. Michael Luttig, has joined the legal team representing voting rights groups.