Thursday, January 26, 2023 | Back issues
Courthouse News Service Courthouse News Service

Supreme Court digs into redistricting play that would usurp judicial checks

North Carolina has stunned democratic and conservative forces alike with an audacious theory to preserve its gerrymandering of state election districts. 

WASHINGTON (CN) — Giving a major elections case intensely even debate, the Supreme Court appeared split on partisan lines Wednesday as it considered a redistricting theory that advocates say could trample a core tenet of democracy. 

Justice Samuel Alito gamely confronted naysayers head-on, suggesting that endorsement of the independent legislature theory put forward by North Carolina lawmakers might even the score in a system where state courts have too much power over election redistricting efforts.

“There's been a lot of talk about the impact of this decision on democracy,” the Bush appointee said. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?” 

North Carolina lawmakers invited the high court to settle the matter earlier this year after their state Supreme Court disavowed new congressional district lines that it found for were “unconstitutional beyond a reasonable doubt.”

Alito and two fellow conservatives on the court, Justices Clarence Thomas and Neil Gorsuch, all dissented in March when the rest of the court declined to order emergency relief. Three months later, the court agreed to add the case to its docket. 

Among members of the court's liberal wing who showed strong opposition to the Legislature's arguments Wednesday, Justice Elena Kagan said the court’s embrace of the independent legislature theory could lead to increased partisan gerrymandering and fewer voter protections. Kagan also noted that legislatures could use this theory to give themselves a role in certifying elections and deciding how results are calculated. 

“I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country,” the Obama appointee said. “And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.” 

Chief Justice John Roberts and Justice Amy Coney Barrett seemed skeptical of lawmakers’ arguments. Roberts appeared to think federal courts should stay out of state court’s interpretation of state constitutions. Barrett asked if the test lawmakers proposed to enforce their theory was a solution to deal with contrary precedent.

“Is your formalistic test just a way of trying to deal with our precedent, or are you rooting that in the Constitution itself?" the Trump appointee asked. "Because you do have a problem with explaining why these procedural limitations are OK but substantive limitations are not." 

North Carolina’s General Assembly enacted the congressional map at the center of this case in response to the 2020 census count. A three-judge panel said the map reflected extreme “partisan redistricting” but ruled gerrymandering claims were political questions nonjusticiable under the state constitution. The state Supreme Court then reversed, finding the maps unconstitutional. 

Lawmakers proposed revisions, but they too did not pass muster, so a three-judge panel assigned a special master to redraw the maps consistent with the state constitution. 

North Carolina lawmakers find authority for their claims in the Constitution’s elections clause, which says federal elections shall “be prescribed in each state by the legislature thereof.” North Carolina lawmakers claim “legislature” should be taken to only apply to the general assembly. 

“It is federal law alone that places substantive restrictions on states legislatures performing the task assigned them by the federal constitution,” said David Thompson, an attorney for the lawmakers with Cooper & Kirk. 

The state argues that lawmakers are misreading the elections clause. They claim legislature refers to the lawmaking process, and state courts do not interfere with the general assembly’s authority. 

“North Carolina courts do not in any way usurp the legislative function when they draw remedial maps in the manner that the statute prescribes,” said Donald Verrilli, an attorney for the state with Munger, Tolles & Olson. 

U.S. Solicitor General Elizabeth Prelogar told the justices that siding with the North Carolina lawmakers would “wreak havoc in the administration of elections across the nation.” 

“Their theory would invalidate constitutional provisions in every single state — many tracing back to the founding,” Prelogar said. “That would sow chaos on the ground as state and federal elections would have to be administered under divergent rules. Federal courts, including this court, would be flooded with new claims, often at the 11th hour in the midst of hotly contested elections.” 

Neal Katyal, who served as acting solicitor general during the Obama administration, said he had never come across a theory that would negate more state constitutional clauses. 

“Frankly, I'm not sure I've ever come across a theory in this court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today,” said Katyal, an attorney with Hogan Lovells who argued for voting rights groups.

In briefing ahead of the day's arguments, leading conservative figures urged the court to rule against the state lawmakers.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...