The U.S. Supreme Court will hear oral arguments Wednesday in a North Carolina elections case to determine who has the ultimate power to draw Congressional maps: the state legislature or state courts.
State Republican legislative leaders have cited the little-known "independent state legislature theory" in making their case that lawmakers — not judges — should draw maps.
Democrats say the GOP’s position could overturn all checks and balances, threatening democracy.
In some ways, Wednesday’s case — Harper v. Moore — is a sequel to another blockbuster North Carolina case decided by the highest court three years ago. That was also about the state’s congressional map.
In the 2019 case, Rucho v. Common Cause, the court said that it didn’t condone partisan gerrymandering but added that federal courts can’t police it. Chief Justice John Roberts, in writing for the 5-4 majority, said state courts should sort all this out.
And that’s what happened.
Last year in North Carolina, Republican lawmakers drew a congressional map that gave them the clear advantage in 10 of the state’s 14 seats. Democrats sued in state court — just as the Roberts court said they should.
The state Supreme Court ultimately rejected that map, paving the way for court-appointed special masters to draw a map that favored Republicans in seven seats, Democrats in six seats with one toss-up.
And now, Republican leaders, led by House Speaker Tim Moore, have asked the nation’s highest court to reverse that. They want the state legislature to have total control over drawing maps for federal elections.
Attorney Allison Riggs, with the Southern Coalition for Social Justice, said the court should follow its 2019 ruling.
“If you adopt (the "independent state legislature theory") it means that what the Supreme Court signaled to us just three years ago in the Rucho case is wrong,” she said.
“The U.S. Supreme Court also said in that case, ‘Don’t worry. You are not condemned to scream into the void about partisan gerrymandering. You can go to state court.’ ”
The theory is an obscure concept that places nearly unfettered power on state legislatures to conduct federal elections. That includes drawing maps.
It relies on a part of the elections clause that states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Tyler Daye with Common Cause NC said if the Supreme Court backed that theory “it goes beyond just redistricting.”
“We could be talking about other federal elections law,” he said. “We could be talking about cuts to early voting. We could be talking about other restrictive laws. The legislature is saying that they should have the power to make this and that a state court can not come in and block it.”
Though the case has focused on gerrymandering, national figures like former Obama administration Attorney General Eric Holder have said it could have a much broader reach by allowing state legislatures to undermine democracy.
“This is a very dangerous theory. It would put our system of checks and balances at risk,” Holder said to CBS News.
GOP leaders have declined interviews and have pointed to their court filings, which only focus on redistricting.
Republican lawmakers only invoked the "independent state legislature theory" after their second attempt at a map, which included four toss-up seats, and was relatively balanced, was also thrown out by the courts.
Jeannete Doran, the general counsel for the North Carolina Institute for Constitutional Law, spoke to WFAE’s Inside Politics podcast earlier this year. She said people claiming the theory will give states total power are mistaken.
“They don’t bother to read the rest of that clause which says the Congress may at any time by law make or alter such regulations,” she said. “So that is the express check and balance.”
Catawba College political science professor Michael Bitzer said if the court sides with state Republicans, they could write an opinion that focuses only on map-making.
“I think generally what Supreme Court justices try to do is to approach things in a very narrowly drawn tailored manner,” Bitzer said. “By which they only look at what is the constitutional question as an issue. And they try to avoid writing sweeping decisions that go about reshaping public policy.
Earlier this year, the GOP appealed to the U.S. Supreme Court asking that it immediately strike down the map that ended up producing seven Democratic seats and seven Republican ones.
The court declined to intervene before the 2022 election, though three justices — Clarence Thomas, Neil Gorsuch and Samel Alito — signaled a willingness to entertain the Independent State legislative Theory. Brett Kavanagh said he didn’t want to interfere with the upcoming election.
