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Supreme Court searches for middle ground in North Carolina elections case

The justices are considering whether to embrace the obscure "independent state legislature" theory, which could strip state courts of power to review certain election laws.

WASHINGTON — Conservative Supreme Court justices appeared skeptical Wednesday about a state court’s decision to strike down Republican-drawn congressional districts in North Carolina, but it seemed unlikely a majority would embrace a broad theory that could upend election law nationwide.

The appeal brought by North Carolina Republicans asks the court, which has a 6-3 conservative majority, to embrace a hitherto obscure legal argument called the “independent state legislature” theory, which could strip state courts of the power to strike down certain election laws enacted by state legislatures.

The independent state legislature argument hinges on language in the Constitution that says election rules “shall be prescribed in each state by the legislature thereof.”

Supporters of the theory, which has never been endorsed by the Supreme Court, say the language supports the notion that, when it comes to federal election rules, legislatures have ultimate power under state law, potentially irrespective of potential constraints imposed by state constitutions. 

After a mammoth three-hour oral argument session, three of the six conservative justices, Samuel Alito, Clarence Thomas and Neil Gorsuch, appeared most sympathetic to the theory.

Alito questioned whether state court judges have too much power over redistricting decisions.

“There’s been a lot of talk about the impact of this decision on democracy. Do you think 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 districts?” Alito asked.

The court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, appeared skeptical of the theory.

“This is a proposal that gets rid of the normal checks and balances on the way big government decisions are made in this country,” Kagan said. She said that in several rulings in recent years, the court had accepted that it is "the ordinary operation of the courts" to weigh in on state election laws.

The outcome could come down to the votes of three other conservatives, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, who all asked probing questions of both sides. They could embrace a middle ground that would reject broader interpretations of the theory while possibly overturning the North Carolina ruling.

Roberts said a Supreme Court ruling from 1932 that said the Constitution is not violated when a governor vetoes a congressional map enacted by a state legislature “significantly undermines” the North Carolina Republicans’ argument.

Barrett agreed that the previous ruling was a “problem” for David Thompson, the lawyer arguing on behalf of the Republicans. She wondered whether the solution suggested by Thompson would be “judicially manageable.” But, later in the argument, she also asked whether state court authority over federal elections should be limited in some form.

Roberts seemed to doubt whether the North Carolina Supreme Court ruling was what the justices had in mind when they said in 2019 that state courts might have authority to rule on partisan gerrymandering.

Kavanaugh appeared skeptical of Thompson’s reliance on a Supreme Court ruling called Bush v. Palm Beach County Canvassing Board, which was issued during the litigation over the presidential election in 2000. Rather than embrace a broad version of the independent state legislature theory, it merely said there was a federal law issue in the case that state court had not addressed, he said.

“I didn’t see it doing a whole lot more than that,” he said.

Hovering over the oral argument was the ghost of Chief Justice William Rehnquist, who embraced a version of the theory in the Bush v. Gore ruling issued later in 2000, which ultimately led to Republican George W. Bush’s taking office as president. Several justices cited Rehnquist's opinion, which did not secure a majority at the time, in support of the notion that there should be some constraints on the scope of state officials, including judges, to make changes to election laws enacted by legislatures that are not anchored in law.

The independent state legislature theory has been embraced by supporters of former President Donald Trump, who cited it in various cases during the 2020 presidential election and its aftermath.

The case, which could have a broad impact on an array of election issues, is being closely watched for its potential impact on the 2024 presidential election.

Republicans led by Tim Moore, the Republican speaker of the North Carolina House of Representatives, invoked the theory after the state Supreme Court struck down the congressional district map in February.

Activists protest partisan gerrymandering at the Supreme Court in Washington, D.C. on Mar. 26, 2019.
Activists protest partisan gerrymandering at the Supreme Court in Washington on March 26, 2019. Carolyn Kaster / AP file

The state court ruled that the 14 congressional districts — which Republicans drew to maximize the influence of Republican voters in a state strongly contested by both main parties — were “unlawful partisan gerrymanders.” The court, which then had a liberal majority, said the maps violated various state constitutional provisions, one of which requires that “all elections be free.”

Moore and other Republicans immediately asked the Supreme Court to reinstate the maps, saying the state court had overstepped its authority. The high court agreed to take up the case, but it left in place a replacement map used for this year’s midterm elections. Democrats and Republicans each won seven seats.

The Supreme Court in 2020 refused to intervene in the various election-related cases that raised the theory, but during the litigation four conservative justices indicated some support for it, giving its supporters hope that they might be a majority willing to embrace it.

There are several versions of the argument, some of which would merely limit the authority of state courts in certain circumstances and others that would go further in giving legislatures virtually unchecked authority.

A Supreme Court ruling that embraces the theory would affect not only redistricting disputes, but also other election-related rules about issues like mail-in voting and voter access to the polls that legislatures might seek to enact even when state courts have held that those rules violate state constitutions. The theory could also bring into question the power of governors to veto legislation.

Those backing the theory in briefs filed at the court include John Eastman, the lawyer involved in Trump’s efforts to overturn the 2020 election who argued that then-Vice President Mike Pence could block the certification of President Joe Biden’s victory on Jan. 6, 2021.

Various conservative groups that push for greater restrictions on voting and claim that voter fraud is a major issue have also backed the theory at the court.

Democrats and voting rights activists have issued stark warnings about the potential impact of the case in light of the attempts to overturn the results of the 2020 presidential election, although many high-profile GOP candidates who denied or questioned Biden’s victory lost in this year’s midterm elections.