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The 2022 midterm elections are the first of the Biden era. They're also the first since the 2020 census, which means there are new congressional districts. There are U.S. Senate races in the Carolinas as well, along with many state and local races.

Supreme Court filing in NC redistricting matter poses thorny questions for conservatives

The U.S. Supreme Court
Jose Luis Magana
The U.S. Supreme Court

Republican lawmakers in the North Carolina General Assembly majority want the U.S. Supreme Court to intervene in the state's ongoing redistricting battle. It is a position that seems to go against some core conservative values.

Earlier this month, the North Carolina Supreme Court's 4-3 majority of Democrats ruled legislative Republicans drew gerrymandered districts that violated state constitutional protections against extreme partisanship. Then, last week, the state's high court accepted new state house and senate maps drawn by lawmakers but rejected a congressional map.

Greg Wallace
Photo By: Jimmy Allen/Scarborough Photography
Greg Wallace

The court said the map drawn by lawmakers failed to meet thresholds of fairness — under analytical measures like efficiency gap and mean-median difference — and instead OK'd a remedial congressional map drawn by three court-appointed Special Masters.

In a filing last week, GOP state lawmakers led by Speaker of the House Tim Moore want that map blocked because the U.S. Constitution's Elections Clause gives state legislatures the authority to regulate the time and manner of federal elections.

The petition seeks an emergency stay blocking the use of the court-drawn map and a grant of certiorari, which would put the case before the full U.S. Supreme Court. To make matters even more urgent, candidate filing for the 2022 mid-term elections is underway and closes at noon Friday. Primary Election Day is set for May 17.

"The question is who draws the maps, not who decides whether the maps are in violation of the state prohibition on partisan gerrymandering," said professor Greg Wallace, who teaches constitutional law at Campbell University's Norman Adrian Wiggins School of Law.

Are conservatives 'willing' to push for federal over state authority?

"The key question for conservatives who believe in states' rights and the principle of power best kept locally," said Michael Bitzer, who teaches political science and history at Catawba College and is author of "Redistricting and Gerrymandering in North Carolina: Battlelines in the Tar Heel State, "is if you have an interpretation of a state constitution that grants liberties and powers, are you willing to have the national supreme court override that particular grant when it comes to judicial federalism."

Michael Bitzer
Catawba College
Michael Bitzer

"I think that that's the big unknown right now in terms of how the court will deal with that," Bitzer added.

UNC School of Law professor Ted Shaw said it would be a mistake to casually dismiss any chance the current U.S. Supreme Court, with its 6-3 conservative majority, would A) take up the case, and B) that it would rule in favor of North Carolina's legislative Republicans.

Shaw, who served as a trial attorney with the U.S. Justice Department's Civil Rights Division as well as the NAACP Legal Defense Fund, said he has "been around the block for a long time now" and that it would be a "fool's mission" to predict what the court would do in this matter. But Shaw said the legislative Republicans' Elections Clause claim presents a novel approach to the matter the current right-leaning high court could be willing to take.

However, Shaw said, a ruling in favor of the GOP lawmakers would drive "a truck through the principles of federalism," the very principles conservatives espouse.

This case is different than a 2019 SCOTUS redistricting case

In 2019, the U.S. Supreme Court declined to intervene in a redistricting matter involving two consolidated cases, one from North Carolina, the other from Maryland. Those were partisan gerrymandering cases and the Court's then 5-4 conservative majority ruled the matter to be non-justiciable for the federal judiciary. That is, the majority ruled, the issue of setting standards for partisanship in drawing voting district lines belonged to state legislatures and, as far as adjudicating any disputes over such laws, to state courts.

Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at UNC Chapel Hill. Photographed by Steve Exum on September3, 2014.
Steve Exum/Exum Photography
Steve Exum/Exum Photography
Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at UNC Chapel Hill. Photographed by Steve Exum on September3, 2014.

But, while the current North Carolina case involves partisan gerrymandering, the GOP legislative defendants are not questioning the state Supreme Court's right to overturn a congressional district map. They are arguing that the state court may not draw the map itself, or with the help of expert appointees.

"This appears to be a violation of the Elections Clause of the United States Constitution," said professor Wallace, of Campbell University. "In Article I, Section 4, the Constitution gives state legislatures the power to set the times, places and manner of federal elections."

"And the manner here," Wallace added, "is the drawing of the congressional districts."

A more apt SCOTUS case to look at, according to Bitzer, is a 2015 case involving a challenge of Arizona's independent redistricting commission, that raised the question of whether the power to write law could be delegated to a body besides the state legislature.

At that time, Justice Ruth Bader Ginsburg was still alive and while the U.S. Supreme Court was split 5-4 in favor of conservatives, Justice Anthony Kennedy was a swing vote who would sometimes side with Ginsburg and the liberal justices.

And that is what happened in the 2015 Arizona case, Bitzer recalled. The majority, with Kennedy joining the four liberal justices, said the independent redistricting commission was within its right to draw political boundaries.

But, Bitzer said, Chief Justice John Roberts wrote the dissenting opinion concluding that lawmaking was within the exclusive authority of the legislature.

Therefore, Bitzer concluded, with Roberts in control of a drastically realigned court, there may be a willingness to side in the current case with Speaker Moore and his fellow Republican legislators.

Copyright 2022 North Carolina Public Radio