In a month, the U.S. Supreme Court is expected to decide whether it will hear an appeal from North Carolina’s legislative leadership, the Speaker of the House. Tim MooreR-Cleveland and President of the Senate pro tempore Philippe BergerR-Rockingham, this could change the way the federal election goes.
Earlier this year, state courts ruled that partisan gerrymandering, or the grouping together of voters in certain districts to ensure that one party can elect more politicians than another, is unconstitutional under the Constitution of North Carolina.
Moore and Berger opposed that decision, but played along. The decision meant the legislature would have to redraw policy maps and have them approved by state courts. When they did this, the courts approved the state House and Senate maps, but blocked the map of the state’s 14 U.S. Congress seats.
Instead, the courts have drawn the 2022 Congress map themselves and said the legislature can try again next year.
Moore and Berger alleged that the ruling violated the U.S. Constitution and that state court judges were overstating their power. In order to circumvent the state court ruling and regain the ability to gerrymander federal congressional districts, Moore and Berger had to go to federal court.
“I will pursue all legal means to ensure that North Carolina’s elections are decided by North Carolinians and that the Constitution and the rule of law are upheld,” Moore said in a press release.
So Moore and Berger appealed the decision to the United States Supreme Court. Now, the nation’s highest court will decide whether it wants to engage in a thorny political debate over the balance of power between branches of state government in how they pass and revise laws governing federal elections.
There’s a ‘deep irony’ in the way it’s playing out, says UNC law professor Andrew Chinwho testified in previous redistricting trials in North Carolina.
Republicans, who traditionally favor state rights arguments, are arguing for a legal theory that would limit state power, Chin said.
Neither Moore nor Berger answered questions for this story.
Moore and Berger’s argument, based on independent state legislative theory, fundamentally takes some power away from state courts and makes Congress and the federal judiciary the only possible checks on federal election laws passed by state legislatures.
When, or if, Congress will act
According to Victoria Bassettisenior adviser to the United Democracy Center of the United States.
“It is not possible to hold free, fair and effective elections without the judiciary and executive branches having a substantial role,” Bassetti said.
But a law professor Derek Muller is not so concerned. If the U.S. Supreme Court were to take up the case, and even if it adopted the most radical interpretation of the independent state legislature theory, the decision would likely confuse federal election laws, said he declared.
But state legislatures will not be unchecked. Congress still has the final power to set federal election law, as provided for in the US Constitution, Muller said.
“Congress still has the power to pass laws governing federal elections,” Muller said. “And if the states are behaving really badly, it’s up to Congress to pass a law.”
Congress failed to pass federal legislation earlier this year that would have banned partisan gerrymandering, so it’s unclear when, or if, Congress would intervene. But Muller said the 800-page omnibus law may not be the best mechanism for Democrats to push for electoral reform that Republicans oppose on party lines.
“If there is a real threat to democracy in the states, especially if it occurs on a downward bipartisan basis, then maybe members of Congress will be interested in setting those rules,” Müller said. .
Stuck in a quagmire
The argument Moore and Berger had to offer was no good until state courts redrew the map of Congress, according to the UNC law professor. Rick Su.
Their lawsuit concerns the constitutional separation of powers between the branches of government when drafting laws for federal elections. So when the court drew the maps, usually a responsibility of the legislature, it may have gone too far.
If the U.S. Supreme Court agreed with that argument, it could rule that state courts can strike down laws like partisan gerrymandering, but they can’t take any positive steps to address the issue, Su said.
This interpretation could lead to an endless cycle of back and forth between the legislature and the courts, where the legislature continually comes up with cards that are struck down by the courts. The way it works in practice, as the last decade of North Carolina political maps showed, is that the courts would eventually have to accept certain political maps just to have an election, even if the courts later rule that the cards are unconstitutional.
“The way you would get out of this impasse would be for Congress to write a law,” said Andrew Hessickprofessor of law at UNC.
If Congress doesn’t act, then failsafe fails, Hessick said.
These arguments all play out in the abstract, a what-if scenario about whether the United States Supreme Court will take up Moore and Berger’s case, and whether it will accept their arguments, and if so to what extent.
But according to a conservative justice opinion and donald trump appointed, Brett Kavanaughthe question is not if, but when.
“It is almost certain that the question will continue to arise until the Court definitively resolves it,” he wrote, refusing to take up the case urgently.
The high court should take up a case on the independent state legislature theory, Kavanaugh wrote, “either in this case from North Carolina or in a similar case from another state.” His vote would be the fourth and decisive to take up the case, as three other conservative justices have already expressed their support for the request.