Republicans in the N.C. General Assembly are asking the U.S. Supreme Court to limit state court oversight over future congressional redistricting.
Republicans filed a petition for writ of certiorari with the court, asserting the Democrat-controlled state Supreme Court violated the elections clause of the U.S. Constitution when they invalidated the legislature’s congressional maps and imposed their own.
The U.S. Supreme court already rejected legislators’ request to intervene before this year’s election.
The refusal to intervene was a victory for N.C. Democrats who will win more seats under the court-drawn map than the map drawn by the Republican-controlled legislature.
The Supreme Court’s refusal to act is based on the Purcell principle, which says federal courts generally should not change state election rules shortly before an election.
But Justice Brett Kavanaugh indicated that the Supreme Court should consider what is known as the “independent state legislature” doctrine in another case. Three justices—Justices Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch—also indicated their support for the doctrine in a dissent from the court’s refusal to act in the North Carolina case.
Senate Leader Phil Berger, R-Rockingham, said, “Activist judges and allied plaintiffs have proved time and time again that they believe state courts have the ultimate say over congressional maps, no matter what the U.S. Constitution says. We must continue this fight to restore the primacy of the legislature and put an end to these efforts to undermine its constitutional duty.”
House Speaker Tim Moore, R-Cleveland, said, “The U.S. Constitution is crystal clear: state legislatures are responsible for drawing congressional maps, not state court judges, and certainly not with the aid of partisan political operatives.”
Moore continued, “We are hopeful that the Supreme Court will reaffirm this basic principle and will throw out the illegal map imposed on the people of North Carolina by its highest court. It is time to settle the Elections Clause question once and for all.”
The independent state legislature doctrine would interpret the federal elections clause of the U.S. Constitution to say that state legislatures have the sole state-based power when it comes to federal elections. The theory would defang the North Carolina courts when it comes to oversight of congressional redistricting.
The elections clause deems the legislature as the authority on the “time, place and manner” of federal elections, but also allows Congress to “at any time by law may or alter such regulations.”
In its court filing, N.C. Republicans wrote:
“By its plain text, the Elections Clause creates the power to regulate the times, places, and manner of federal elections and then vests that power in “the Legislature” of each State. It does not leave the States free to limit the legislature’s constitutionally vested power, or place it elsewhere in the State’s governmental machinery, as a matter of state law. After all, the Elections Clause “could have said that [federal election] rules are to be prescribed ‘by each State,’ which would have left it up to each State to decide which [state entity] should exercise that power,” but instead, the Constitution’s “language 3 specifies a particular organ of a state government, and we must take that language seriously.”
The New York Times points out that the votes of four conservative justices would be sufficient to add a case on the doctrine to the court’s merits docket.
“But it takes five votes to prevail,” the Times points out. “The swing vote would almost certainly belong to Justice Amy Coney Barrett.”
It is worth noting that state Republicans have little to lose in the case. The issue is settled for this year. If Republicans maintain control of the General Assembly, which they are heavily favored to do, they can redraw the congressional districts next year, no matter what.
State Republicans took a series of bloody body blows in the recent battle over new political boundaries.
The state Supreme Court installed a court-drawn congressional map that was specifically drawn to improve Democrats standing in North Carolina’s congressional delegation. In 2020, North Carolina elected eight Republicans and five Democrats. The new map virtually guarantees North Carolina will elect six Democrats in 2022, no matter what the election results. Republicans will most certainly win seven of the 14 seats. Only one of the 14 seats is considered a competitive/swing seat.
The court also forced Republicans to redraw the state legislative maps to guarantee more Democrats are elected, declaring that the N.C. Constitution requires election results that are “partisan fair,” despite there being no text of the document that says so.
But Moore recently told Carolina Journal he believes the General Assembly is free to redraw the State House and State Senate maps as well and is likely to pursue that option. The North Carolina Tribune’s Colin Campbell reported Moore indicating the same.
According to Campbell, Moore believes that a state constitutional ban on mid-decade redrawing of legislative districts does not apply because the legislature was responding to a court mandate.
The Democrat-aligned plaintiffs strongly assert that they believe the General Assembly is stuck with the revised maps.
But if the current political environment holds, Republicans will gain control of the N.C. Supreme Court in November, and the GOP court would decide if the legislative maps can be redrawn. The Republican General Assembly would also have a court that believes the question of partisanship in redistricting is a political one that can only be answered by the General Assembly and the voters.
The bottom line is this:
Democrats made some modest gains in North Carolina through the recent redistricting lawsuits. Democrats will win six U.S. House seats instead of the three or four they would have won. CJ has reported Democrats also netted one or two state Senate Seats and four to five state House seats through the lawsuits.
However, those gains in the current brutal political environment for Democrats may not stop Republicans from winning veto-proof supermajorities in 2022 anyway.
The two or three additional U.S. House Seats Democrats won via lawsuit will not keep Democrats from losing the U.S. House Majority in 2022
Republicans may be redrawing all of North Carolina’s political maps in 2023, with a friendly state Supreme Court.
Democrats could end up worse than if there had never been lawsuits this year.
Plus, the U.S. Supreme Court could forever sideline the state Supreme Court when it comes to congressional redistricting.
Remind me again who won and who lost?