WASHINGTON (CN) — Republicans from North Carolina’s General Assembly appealed to the Supreme Court on Friday evening to overturn a ruling that condemned their new congressional map for partisan gerrymandering.
The application — which was sent to Chief Justice Roberts — claims the justices should interfere to prevent elections from being prescribed by courts and not the Legislature. While the high court does not usually review state high court decisions, the GOP is asking the justices to intervene based on a controversial doctrine that would strip state courts of their power to review redistricting matters.
“This Court should put a stop to the North Carolina judiciary’s usurpation of the General Assembly’s specifically enumerated constitutional authority to regulate the manner of congressional elections,” David Thompson, an attorney for Cooper & Kirk, wrote in the application. “Anything less will surrender North Carolina’s 2022 elections to a congressional map that palpably violates the U.S. Constitution, rewarding judicial activism of the most brazen kind.”
The North Carolina General Assembly enacted a new congressional map in November but it was quickly challenged for unlawful partisan gerrymandering. A three-judge panel ruled in favor of the Assembly, but in February the North Carolina Supreme Court enjoined the map, stating courts have a responsibility to protect the rights of citizens. The state high court found the new congressional map to be “unconstitutional beyond a reasonable doubt” under four different clauses of the North Carolina Constitution.
Both the Assembly members and three special masters appointed by the court created new congressional maps to replace the gerrymandered maps. The court rejected the Assembly’s map in favor of the special master’s version.
As a last-ditch effort, North Carolina Republicans are turning to the U.S. Supreme Court.
According to Assembly members, state legislatures have authority over elections and not state courts.
“‘The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,’” their application states quoting an opinion by Justice Neil Gorsuch.
Using the elections clause, Republicans say that according to the Constitution, only Congress can check state legislatures on rules regarding federal elections.
“The Constitution thus grants the state ‘Legislature’ primacy in setting the rules for federal elections, subject to check only by Congress,” the application states. “And there can be no question that this specific delegation of power to state legislatures encompasses the authority to draw the lines of congressional districts.”
The GOP claims founding-era sources prove their theory about legislatures having the last word on election rules.
“In Federalist 59, Hamilton ‘readily conceded[ that there were only three ways in which 'the power to regulate elections‘ could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former,” the application states.
Roberts has asked the groups challenging the contested map to respond to the application by next Wednesday.
Earlier this month the court blocked a redraw of a Republican-friendly congressional map in Alabama that a lower court blocked for violating the Voting Rights Act. The action sparked concern from experts who warned the court could be showing interest in further disintegrating the Voting Rights Act.
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