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Major elections case on the skids as Supreme Court questions jurisdiction

A new Republican majority on the North Carolina Supreme Court could upend a redistricting battle before the justices. 

WASHINGTON (CN) — The U.S. Supreme Court asked for additional briefing Thursday in a major elections case following the state high court’s decision to reconsider the case itself. 

In a redistricting battle brought by North Carolina lawmakers, the justices are considering a controversial theory that could usurp judicial checks on elections. After the North Carolina Supreme Court granted a rehearing in the case, however, the high court in Washington is now questioning whether it has jurisdiction to hear the dispute. 

The dispute stems from a redraw of North Carolina's congressional maps following the 2020 census. Though a three-judge panel found the new maps had been gerrymandered, it said the claims were nonjusticiable under the state’s Constitution. Later the state Supreme Court reversed, finding the maps unconstitutional. 

The court wound up revising the maps itself when no map produced by lawmakers met approval. The case then moved to the high court’s emergency docket where the justices declined to intervene. In June the justices agreed to take up the case. 

To advance their case, North Carolina lawmakers have embraced the independent state legislature theory — a constitutional theory that would give the state legislature unchecked supremacy over federal elections. According to proponents of the theory, the Constitution’s elections clause says federal elections shall “be prescribed in each state by the legislature thereof.” Lawmakers have taken legislature to refer only to the general assembly — not the lawmaking system that includes judicial review by state courts. 

Some legal experts warn the Supreme Court’s embrace of the independent state legislature theory could throw out critical checks and balances in elections. 

It was unclear how the justices would rule when they heard the case at oral arguments in December. Justice Samuel Alito appeared to tamp down uproar over the independent state legislature theory. On the liberal wing, Justice Elena Kagan worried the court’s embrace of the theory could increase partisan gerrymandering and loosen voter protections. 

The court was thrown a curveball in February, however, when the newly minted Republican majority on the state Supreme Court agreed to rehear the case. The previous state high court majority that ruled the map unconstitutional was led by Democrats. After the majority flipped, House Speaker Tim Moore and Senate leader Phil Berger requested the justices reconsider the case. 

The move could upend the justices' jurisdiction to hear the battle. Additional briefing on the issue from lawmakers, voting rights groups involved in the case and the government is due March 20. 

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