If the U.S. Supreme Court ignores N.C. legislative leaders’ arguments in the Moore v. Harper redistricting case, justices might use another avenue to reach the same destination.
A recent congressional election map fight in Ohio presents strikingly similar issues.
The high court could decide in the weeks ahead whether to take up Huffman v. Neiman. If justices accept that Ohio case, they’ll confirm their interest in setting limits on state courts’ role in legal disputes over congressional election maps.
The high court heard oral arguments on Dec. 7 in Moore v. Harper. In that case, North Carolina’s Republican legislative leaders challenged a Democrat-dominated state Supreme Court’s actions.
State courts rejected two different congressional election maps approved by legislators. State judges substituted their own map for the 2022 election cycle. Voters ended up electing a U.S. House delegation with a 7-7 split between the two major parties.
Legislative leaders have asked the U.S. Supreme Court to overturn state courts’ actions. They contend state courts violated the U.S. Constitution’s Elections Clause.
But those same legislative leaders are also seeking a rehearing of the dispute in the N.C. Supreme Court. Since voters replaced two Democrats with Republicans in last November’s election, the state’s highest court flipped from a 4-3 Democratic majority to a 5-2 Republican advantage.
It’s possible that a rehearing in Raleigh could render U.S. Supreme Court action in Moore v. Harper moot.
If so, the Huffman case could prove valuable. Justices could use the case to set clear boundaries for state courts addressing congressional election maps.
Unlike North Carolina, Ohio employs a redistricting commission to draw its statewide election maps. Yet the commission has not freed the Buckeye State from partisan disputes over district lines.
A federal court allowed Ohio to proceed with 2022 congressional elections using maps declared unconstitutional by the state’s top court.
Now legislative leaders in Columbus ask the U.S. Supreme Court to reject the Ohio courts’ actions.
“The Elections Clause assigns to state legislatures the authority to draw congressional district maps. The Ohio Supreme Court arrogated that authority to itself when it (1) made up rules for the Ohio legislature to follow as it draws congressional district maps and (2) commandeered the state legislature’s pen by dictating the number of Republicans and Democrats to represent Ohio in Congress,” according to a brief filed with the U.S. Supreme Court in late December. “Because the Ohio Supreme Court is not the state legislature, those policymaking acts violated the Elections Clause.”
Ohio Attorney General Dave Yost represents legislative leaders, along with a Cincinnati-based private firm. Raleigh-based attorneys who have worked for N.C. legislators in Moore v. Harper also serve as special counsel for Ohio legislative leaders.
“At the Ohio Supreme Court, Petitioners explained that the Elections Clause prohibits that court — ‘a judicial body, not a legislative body’ — from becoming the ‘invisible hand’ drawing the districts and from ‘vest[ing] itself with the authority to draw congressional boundary lines’ either ‘under its own pen or indirectly through a line-by-line mandate,’” according to the brief.
“The Ohio Supreme Court nonetheless decided to do what the Elections Clause prohibits,” Ohio legislators argued. “[T]he court both created its own rules governing Ohio’s congressional district maps and dictated the electoral outcomes that Ohio’s map must produce.”
Defenders of the Ohio Supreme Court’s actions claim state justices merely interpreted and applied the law. “That’s not what happened,” Ohio legislators responded. “Instead, the Ohio Supreme Court made up the rule of decision and then forced the legislature to act as its puppet in ensuring that at least six Democrats from Ohio serve in the U.S. House of Representatives.”
“The court invalidated a congressional district map with ten Republican-leaning districts and five Democratic-leaning districts not because of any language in the Ohio Constitution, but because — in the Court’s view — that outcome was a ‘statistical outlier’ that exhibited undue partisan bias.”
Not only did the Ohio Supreme Court decide that Democrats should win at least six of the state’s 15 congressional races. “It also dictated the vote share of the Democratic-leaning districts, concluding that Democrats were not really favored to win districts with Democratic vote shares of 52.15%, 51.04%, and 50.23%.”
“That is, the Democratic-leaning seats were not Democratic enough. Again, no words from the Ohio Constitution supported any of those percentages,” according to the brief.
As in Moore v. Harper, critics of Ohio state courts’ action seek clarity from the U.S. Supreme Court.
“Even if state courts have some ability to ensure that state laws regulating federal elections abide by state constitutional provisions, the Elections Clause prohibits state courts from significantly departing from a reasonable interpretation of a state constitution such that the court, in effect, acts as a legislature.”
Whether the Moore case or the Huffman case serves as the vehicle, the nation’s highest court faces an excellent opportunity to limit state courts’ ability to legislate from the bench.
Mitch Kokai is senior political analyst for the John Locke Foundation.