Most pundits miss key points of NC redistricting dispute
Lawyers and pundits have written tens of thousands of words about the Moore v. Harper case at the U.S. Supreme Court. Surprisingly few of those words focus on the actual issue at the heart of the legal dispute.
That’s why it’s helpful to revisit key pieces of a legal brief N.C. legislative leaders filed back in August.
Here’s the question state lawmakers presented to the nation’s highest court: “Whether a State’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,’ and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”
Moore v. Harper heads to oral arguments before the nation’s highest court on Dec. 7. The case springs from a legal fight over North Carolina’s congressional map.
Based on updated 2020 census data, the Republican-led General Assembly drew a new map last year for the state’s 14 seats in the U.S. House of Representatives. Left-of-center critics didn’t like the map. They filed suit against it. They claimed the map featured partisan gerrymandering that was impermissible under the state constitution.
A three-judge trial court panel agreed that lawmakers had drawn a map clearly favoring Republicans. But the bipartisan panel also ruled unanimously that nothing within the state’s constitution or legal history blocked legislators from using partisanship in the map-drawing process.
The state Supreme Court disagreed. With a 4-3 party-line vote, the court’s Democratic majority threw out the map. Justices gave lawmakers suggestions, but no firm rules, for how to avoid excessive partisanship with a revised map. The high court returned the case to the trial court.
The three-judge trial panel then tossed out the legislature’s revised map. Judges substituted their own map for the 2022 election cycle. The state Supreme Court did nothing to block that decision.
Legislative leaders argue to the U.S. Supreme Court that these state court actions violated the Elections Clause of the U.S. Constitution. That clause gives state legislatures control over “times, places, and manner” of elections to Congress.
“Accordingly, the General Assembly is the only entity with the authority to draw North Carolina’s congressional districts,” according to lawmakers’ Aug. 29 brief. “Yet the courts below exercised precisely that power, in direct contravention of the federal Elections Clause.”
Lawmakers take direct aim at the state Supreme Court’s Democratic justices, who called on trial court judges to oversee the mapmaking process.
“Rather than setting forth a determinate legal standard, the state supreme court remanded to the trial court to conduct the quintessentially political task of applying ‘some combination’ of various partisanship metrics, … yet the supreme court refused to specify which of these ‘set of metrics’ should actually be used to ‘demonstrate or disprove the existence of an unconstitutional partisan gerrymander,’” lawmakers argued.
Legislative leaders note that the N.C. Supreme Court based its ruling against partisan gerrymandering on state constitutional provisions that say nothing about election maps.
“[T]he unfettered policymaking engaged in by the North Carolina courts here plainly exceeds the limits of permissible delegation on any understanding,” lawmakers argued. “It is one thing for a State to effectively delegate to the state courts the authority to enforce specific and judicially manageable standards, such as contiguousness and compactness requirements. It is quite another for the court to seize the authority to find, hidden within the folds of an open-ended guarantee of ‘free’ or ‘fair’ elections, rules governing the degree of ‘permissible partisanship’ in redistricting — a matter that this Court has held to be ‘an unmoored determination’ that depends on ‘basic questions that are political, not legal.’”
If the state constitution’s guarantee of “free” elections offers no guidance for drawing election maps, more general constitutional protections offer even less help.
“Nor do the state-constitutional guarantees of equal protection or free speech and assembly provide any judicially discernable standards — for these provisions ‘make no reference to elections at all,’” legislators added. “If the Elections Clause places any limits on what matters may be parceled out to entities in a State other than the legislature, then it cannot allow a State’s courts to do what was done in this case: discover somewhere within an open-ended guarantee of ‘fairness’ in elections a novel rule requiring partisan criteria to be taken explicitly into account when drawing congressional districts.”
Most accounts of Moore v. Harper cite pros or cons of something called the Independent State Legislature theory. Its biggest critics fear that a ruling favoring N.C. legislative leaders would open the door to all manner of legal mischief.
Some even cite the prospect of state lawmakers throwing out slates of presidential electors when they disagree with an election outcome. (It’s a “scurrilous suggestion,” according to a brief lawmakers filed on Nov. 18.)
The U.S. Supreme Court need not travel down that path. Moore v. Harper simply asks justices to set a clear limit on state courts’ ability to substitute their own political preferences for those of legislators.
The nation’s highest court should be able to ignore the spin. Justices can render a decision that will allow the election mapmaking process to proceed with greater clarity in the years ahead.
Mitch Kokai is senior political analyst for the John Locke Foundation.