Groups line up against N.C. lawmakers in U.S. Supreme Court redistricting case

U.S. Supreme Court building surrounded by security fences. Source: Creative Commons.

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  • Groups opposing N.C. lawmakers' arguments in the Moore v. Harper redistricting case have filed at least 40 amicus briefs at the U.S. Supreme Court.
  • The case will help determine the role state courts can play in revising or rejecting state lawmakers' congressional election maps.

A group of retired four-star generals and admirals, the speaker of Puerto Rico’s state House, a U.S. senator who once attacked the John Locke Foundation on the Senate floor, and Arnold Schwarzenegger are among the parties arguing against N.C. lawmakers in a high-profile U.S. Supreme Court case.

Opponents have critiqued legislative leaders’ arguments in at least 40 separate amicus, or friend-of-the-court, briefs filed since Oct. 20. The case, titled Moore v. Harper, focuses on the role state courts can play in rejecting or revising congressional election maps drawn by legislatures.

Lawmakers argue that the N.C. Supreme Court overstepped its authority earlier this year. The court applied vague state constitutional provisions to justify tossing out legislators’ congressional election map. Voters heading to the polls in the days ahead face congressional districts drawn by outside “special masters’ and imposed by state courts for the 2022 election cycle.

Critics have taken aim against an element of the Moore v. Harper case dubbed the “independent state legislature” theory. Supporters contend the U.S. Constitution’s Elections Clause assigns decisions about the “times, places, and manner” of holding federal elections only to state legislatures.

“This theory would eliminate state efforts to curtail partisan gerrymandering, imperiling the checks and balances needed for a functioning redistricting process that places voters’ interests over legislators’. It would upset this Court’s longstanding precedent upholding States’ checks and balances on the exercise of legislative power for congressional redistricting – through popular referenda, gubernatorial vetoes, and independent redistricting commissions,” according to a brief submitted by Washington, D.C.-based attorneys on behalf of Schwarzenegger, the “Terminator” movie star and former California governor.

Another brief represented retired Navy and Coast Guard admirals and Army, Air Force, and Marine generals, along with former secretaries of the Army, Air Force, and Navy.

“Petitioners advocate adoption of a profoundly destabilizing and undemocratic approach to election administration,” according to their brief. “The independent state legislature theory would undermine election integrity and diminish public confidence in electoral outcomes.
Centralizing authority over federal elections in the hands of state legislatures would result in election chaos by undermining professional nonpartisan election administrators and undoing hundreds of laws enshrined in state constitutions, adopted by voter referenda, or implemented through administrative rules.”

The former military leaders warn of the danger of civil unrest and potential disenfranchisement of military voters if N.C. lawmakers win the case.

Some 1,400 miles southeast of Raleigh, Rafael Hernandez Montanez also decided to enter the legal debate. He filed a brief in his role as speaker of Puerto Rico’s House of Representatives.

“[T]he outcome of the instant case will very likely play a key part in the next dispute regarding a presidential election and may even encourage antidemocratic behavior by disappointed majority members in a state legislature whose party lost a statewide race,” according to Montanez’s brief.

From Capitol Hill, Democratic U.S. Sen. Sheldon Whitehouse of Rhode Island launched his attack on N.C. legislative leaders. (Whitehouse once labeled the John Locke Foundation part of a “Web of Denial” because of the group’s stance against climate alarmism.)

“This case swarms with amicus briefs supporting Petitioners that elide a salient fact: the doctrine they encourage this Court to adopt — the ‘independent state legislature’ theory — is one of the fringe legal theories deployed in a failed legal plot to overturn the results of the 2020 presidential election,” according to the brief from Whitehouse and U.S. Rep. Hank Johnson of Georgia. “Many of Petitioners’ amici actually attempted to undermine the 2020 election by relying on this theory. … Rarely has such a noxious assemblage of amici appeared before this Court, and their secrecy about their funders and connections does this Court a grave disservice.”

The U.S. Supreme Court will hear oral arguments on Dec. 7 in Moore v. Harper. Court watchers expect a decision in the case near the end of the court’s term next June.

That decision could affect North Carolina’s next congressional redistricting plan for the 2024 election.