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Supreme Court hints at a narrow win for GOP in major election law dispute

A guard walking on the steps in front of the U.S. Supreme Court
The Supreme Court is considering giving partisan state legislators even more control over elections in their states.
(Kent Nishimura / Los Angeles Times)
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The Supreme Court’s conservatives hinted Wednesday they may rule — but only narrowly — for Republican state lawmakers in North Carolina who are claiming an exclusive power to set election maps without review by state courts.

The justices heard arguments in the gerrymandering case, which could dramatically reshape how congressional and presidential elections operate at the state level, potentially giving virtually unfettered power to partisan politicians.

But the case may yield a more modest ruling that holds state legislators may set rules for elections, including drawing maps of voting districts, but with at least some oversight by state courts.

The North Carolina clash between partisan lawmakers and state judges has drawn extraordinary attention because so much of election law has come under attack recently. Just two years ago, then-President Trump and some of his allies sought to overturn his defeat by having Republican state legislators declare him the winner.

In their appeal to the conservative-dominated high court, GOP lawmakers are citing the so-called independent state legislature theory. The doctrine holds that the U.S. Constitution gives state legislators — not governors or state judges — the full and exclusive authority to draw maps of congressional districts, even if that results in a lopsided advantage for their party.

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The lawmakers note the Constitution says the rules for electing members of Congress “shall be prescribed in each state by the legislature thereof.”

For most of American history, however, state judges, governors and other officials have also played a role in such matters. State supreme courts routinely oversee voting disputes for federal, state and local elections.

Moreover, the U.S. Supreme Court has never endorsed such a theory.

Lawyers representing Democratic Party leaders and voters in North Carolina called the theory radical, and said it would overturn basic principles of checks and balances.

During nearly three hours of arguments Wednesday, there was no clear consensus on how the court would rule. The six conservative justices suggested they were inclined to limit the power of state judges rather than limit the discretion of partisan lawmakers.

But it also appeared they were not ready to go as far as Republicans would like.

In their comments, Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett seemed to search for a compromise that would allow state courts to review election plans but require judges to defer as much as possible to lawmakers.

Under such an approach, a state court could still block an election map, but it would be sent back to the legislature for changes. Courts or others would not be allowed to create or modify maps.

This would mean a state’s high court would retain its authority to enforce the state’s constitution, but its legislature could make the final decision on election maps.

Kavanaugh pointed out that former Chief Justice William H. Rehnquist raised the independent legislature theory during the infamous Florida recount following the 2000 presidential election that resulted in the Bush vs. Gore decision. Rehnquist said Florida state judges appeared to be ignoring or revising aspects of the state election law, which would violate the U.S Constitution.

But Kavanaugh, addressing GOP attorney David Thompson on Wednesday, said: “Your position seems to go further than Chief Justice Rehnquist. ... He seemed to acknowledge that state courts would have a role in interpreting state law.”

Roberts said he was wary of unchecked legislative power, but told the Republican attorney he was interested whether “there’s a narrower, alternative ground to decide the case in your favor which would allow some substantive state restrictions to be enforced” by judges.

During Wednesday’s argument, three prominent Democratic lawyers warned the justices against endorsing the theory that all power over federal elections rests in the hands of state legislatures.

Attorneys Neal Katyal and Donald Verrilli Jr., who both served in the Obama administration, and current Solicitor Gen. Elizabeth Prelogar said adopting the theory proposed by the GOP could overturn two centuries of precedent and cause chaos in resolving ordinary disputes over voting rules.

It could even lead to two sets of election rules in a state, they said — one for federal elections and another for state and local elections.

Another provision of the Constitution cited by advocates of the independent legislature theory applies to presidential elections. It says “each state shall appoint” the electors who vote for president “in such manner as the Legislature thereof may direct.”

That provision is not at issue in the North Carolina case. By law, all states choose their electors based on the popular vote.

But some election law experts fear a Supreme Court ruling putting more power in the hands of state legislators could encourage some of them to claim the power to appoint alternate electors who support the legislators’ presidential candidate rather than the one chosen by the state’s voters. Such a move was advocated by some Trump supporters after he lost the 2020 election.

North Carolina has seen a series of fierce partisan fights over redistricting in the last decade.

Last year, the state’s GOP-controlled Legislature drew an election map that would have all but assured Republicans would win 10 of 14 U.S. House seats. The government watchdog group Common Cause and others sued, and the state Supreme Court, which had a majority of Democratic appointees, struck down the map because it gave an “extreme partisan advantage” to Republicans.

State judges then chose a panel of election experts, who drew a new map that better reflected the state’s political makeup.

In February, North Carolina Republicans, led by state House Speaker Timothy Moore, sent an emergency appeal to the Supreme Court, asking the justices to block the state judges’ ruling and restore the GOP-friendly map. A majority of justices refused to intervene, with conservatives Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissenting.

Kavanaugh said at the time that it was late to change the districts again before the midterm election, but he expressed interest in considering the underlying legal question.

In June, the court voted to hear the case of Moore vs. Harper to decide whether state judges may strike down election maps drawn by legislatures.

When North Carolina voters went to the polls last month, they elected seven Republicans and seven Democrats to the U.S. House.


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