Legislators’ redistricting arguments would ‘wreak havoc,’ critics tell U.S. Supreme Court

Critics of North Carolina’s Republican-led General Assembly urge the U.S. Supreme Court to reject lawmakers’ arguments in the Moore v. Harper redistricting case. Those critics predict a ruling in favor of lawmakers would “wreak havoc” on American elections.

The nation’s highest court will hear oral arguments on Dec. 7 in Moore v. Harper.

Lawyers representing left-of-center groups Common Cause and the N.C. League of Conservation Voters, along with individual plaintiffs, filed a brief Wednesday with the Supreme Court. They are considered one set of “respondents” in the case, while state legislative leaders are labeled “petitioners.”

A second set of respondents from state government’s executive branch filed its own brief Wednesday.

Among the 35 lawyers listed on the brief from left-of-center activists is Michael Luttig, a prominent former conservative federal Appeals Court judge. Luttig has been a vocal critic of the Trump administration’s challenge of 2020 election results. The list of lawyers also includes Neal Katyal, a Georgetown Law School professor and former acting solicitor general of the United States.

“Petitioners ask this Court to interpret our Constitution’s Elections Clause in a manner that flouts that document’s most fundamental premise — that a government’s power derives from ‘We the People’ and is limited by the constraints the people impose on their government,” the respondents’ brief argued. “According to Petitioners, when the Elections Clause assigns authority to the state ‘Legislature,’ it authorizes those legislatures to violate their own state constitutions, as interpreted by their state courts. Every tool of constitutional interpretation demonstrates that Petitioners are wrong.”

“Contrary to Petitioners’ claim, conferring power on the state ‘Legislature’ to regulate congressional elections does not nullify state constitutional limits on that power any more than empowering ‘Congress’ nullifies federal constitutional limits,” legislative critics added. “And when state courts enforce state constitutions, they no more exercise ‘legislative’ authority
than do federal courts.”

History and court precedent argue against state lawmakers, according to their left-of-center critics.

“Nearly a century ago, this Court unanimously rejected the argument that the Elections Clause endows state legislatures ‘with power to enact laws in any manner other than that in which the Constitution of the State has provided,’” according to respondents’ brief. “More recently, all nine Justices rejected the claim that state legislatures have ‘exclusive’ redistricting authority immune from constitutional constraints.”

State law gives N.C. courts the authorization to review congressional election maps, respondents argued. “Petitioners never explain how the North Carolina Supreme Court could be usurping power that the legislature and Congress specifically gave it.”

“Adopting Petitioners’ interpretation … would wreak havoc,” according to the brief. “Running elections is already ‘extraordinarily complicated and difficult.’ Petitioners’ theory could require state officials to run two elections simultaneously: one for state elections that are subject to the state constitution, and one for congressional elections that are not.”

“Petitioners’ theory would also call into doubt indispensable features of States’ election apparatuses — which empower executive officials to administer elections and permit state courts to adjudicate election disputes,” respondents argued. “Perhaps worst of all, Petitioners’ theory would require this Court to second-guess state-court interpretations of state constitutions, often in an emergency posture on the eve of an election — an intolerable affront to the principles of federalism.”

“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy.”

Lawyers representing state government’s executive branch also criticized state lawmakers’ argument.

“In the 233 years since North Carolina ratified the Constitution, the state legislature has never before claimed the power that its current leaders assert here: the power to prescribe federal-election regulations that violate the State’s constitution and are immune from judicial review,” according to the state respondents’ brief. “That is for good reason. The Constitution’s text and structure, overwhelming evidence of historical practice, bedrock principles of federalism and the separation of powers, and more than a century of this Court’s precedent categorically
foreclose Petitioners’ extreme and dangerous reading of the Elections Clause.”

Legislative leaders argue that the N.C. Supreme Court overstepped its authority in February when it threw out a congressional election map drawn by the Republican-led General Assembly. State courts later substituted their own map for the 2022 election cycle. It was drawn by outside “special masters” working for a three-judge trial court.

Lawmakers argue in Moore v. Harper that the Election Clause — Article I, Section 4, Clause 1 of the U.S. Constitution — assigns decisions about the “times, places, and manner” of holding federal elections to state legislatures.

“The text of the Constitution directly answers the question presented in this case,” wrote legislative leaders’ attorneys in August. “The Elections Clause provides, in unambiguous language, that the manner of federal elections shall ‘be prescribed in each State by the Legislature thereof.’ Yet in the decision below, the North Carolina Supreme Court invalidated the state legislature’s duly enacted congressional map and decreed that the 2022 election and all upcoming congressional elections in the State were not to be held in the ‘Manner’ ‘prescribed … by the Legislature thereof,’ but rather in the manner prescribed by the state’s judicial branch.”

“It is obvious on the face of the Constitution that this result is irreconcilable with that document’s allocation of authority over federal elections,” legislative leaders argued.

Editor’s note: This article was updated at 3:55 p.m. to include information about the state respondents’ brief.