Supreme Court to weigh state power over federal elections

Challenge to North Carolina congressional map could allow state legislatures to upend election rules nationwide, experts say

The Supreme Court in October.  (Tom Williams/CQ Roll Call)
The Supreme Court in October. (Tom Williams/CQ Roll Call)
Posted December 5, 2022 at 12:27pm

The U.S. Supreme Court will hear oral arguments Wednesday in a case about North Carolina’s congressional map that could give state legislatures more sway over federal elections.

Members of the state’s Republican-controlled legislature have argued that the state Supreme Court overstepped its bounds earlier this year when it ruled the newly redrawn congressional districts violated the state constitution through partisan gerrymandering.

The state court approved a new congressional map for the 2022 midterm elections that was less favorable overall for Republican candidates — and the legislators want the U.S. Supreme Court to find that move violated the U.S. Constitution.

But the Tar Heel State voters who first challenged the map, along with dozens of outside experts, contend that siding with the legislators would throw into doubt hundreds of election rules across the nation — as broad as congressional maps or as local as the locations of polling places.

Eliza Sweren-Becker, counsel on voting rights and elections at the Brennan Center for Justice at New York University Law School, said the theory presents “real dangers” to how the states conduct elections.

“There's really no way to soft-pedal what North Carolina legislators are asking for in this case,” Sweren-Becker said at a panel discussion. “What they want will mean election chaos.”

The Brennan Center filed one of several dozen amicus briefs in the case opposing the North Carolina legislature’s approach, including one from a group of Democratic senators led by Amy Klobuchar of Minnesota. The senators argued that legislators should operate with the same judicial branch checks Congress does.

Independent theory

The arguments in the case, Moore v. Harper, revolve around the “independent state legislature” theory, which stems from the Elections Clause in the Constitution. The clause says that state legislatures determine the “The Times, Places and Manner” of federal elections for senators and representatives, unless Congress passes a law to override them.

North Carolina’s legislators argue the Elections Clause means state courts do not have the power to hear a dispute over federal election rules.

“The Constitution thus grants the state ‘Legislature’ primacy in setting the rules for federal elections, subject to check only by Congress,” and not the state courts, the North Carolina legislators wrote in their brief to the justices.

The Republicans added that by reading a few separate clauses of the state constitution to bar political gerrymandering, the state court made legislators’ authority moot.

“The Elections Clause’s allocation of authority to state legislatures would be emptied of meaning if state courts could seize on vaguely-worded state-constitutional clauses to replace the legislature’s chosen election regulations with their own,” the legislators argued.

Voters could still challenge election laws in federal courts based on federal laws but could not challenge congressional maps based on partisan gerrymandering.

Zach Smith, a legal fellow at the Heritage Foundation, said the potential sweep of a decision in favor of the state legislators has been overstated.

Numerous cases over the decades have tested the limits of how much say state courts should have over federal elections, he said, and “it is better that the court resolve the issue now than when elections are taking place and the court’s decision could be outcome determinative.”

Voter challenge

The challengers to the original map contend the state legislators’ reading of the Constitution has no historical basis.

What’s worse, they argue, expanding a legislature’s power would toss hundreds of years of state court rulings on congressional elections and throw into doubt thousands of decisions made by secretaries of state and local election administrators on the actual conduct of elections.

Al Schmidt, a Republican former election commissioner for Philadelphia, said in a panel discussion that the case could end up splitting local and state races from federal ones, with separate rules for each.

“From a practical perspective it invites both chaos and paralysis into the system in a way that election administration becomes unworkable to have different rules for different candidates in the conduct of that election on the same ballot,” Schmidt said.

North Carolina’s Supreme Court ruled that the original map approved by the legislature violated the state constitution for overly favoring Republicans and ordered the legislature to try again.

Voter advocates in the North Carolina case argued that Republicans would likely win 10 or 11 of the state’s 14 newly drawn congressional seats — in a state former President Donald Trump won by 1 percentage point in 2020.

The legislature's second attempt did not pass the lower court's test, and the state Supreme Court ultimately adopted a map drawn by a special master. North Carolina voters last month sent seven Democrats and seven Republicans to Congress.

Conservative approach

In March, the legislators asked the U.S. Supreme Court to undo the state court's decision in an emergency application. The justices declined to intervene at that time, likely because it was too close to the election.

But Justice Samuel A. Alito Jr. wrote a dissent to that decision that argued in favor of some version of the independent state legislature theory.

“[I]f the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito wrote.

In June, the Supreme Court agreed to decide the case, which caught significant attention for its ties to arguments made by several allies of former President Donald Trump in their effort to overturn his loss in the 2020 election.

One of those, attorney John Eastman, filed a brief in this case that argues state courts could not limit state legislatures’ sway over federal elections.

But several experts said the case at issue involves a different part of the Constitution than what Eastman advanced in 2020, and the Moore v. Harper case could not on its own justify overturning an election result.

With the Supreme Court's current 6-3 conservative majority, the oral arguments could reveal which justices might ultimately side against the North Carolina legislators.

In particular, Chief Justice John G. Roberts Jr. may be “the most inclined among the more conservative justices to oppose the legislature’s position here,” said Derek Muller, a law professor at the University of Iowa who focuses on election law.

In a 2019 case, Rucho v. Common Cause, Roberts wrote an opinion that state courts could handle gerrymandering claims where federal courts could not. And the Supreme Court in 2015 ruled against Arizona’s state legislature when it sought to wipe out a ballot initiative that gave to a state commission the power to draw the state’s congressional map.

Roberts has “a pretty strong string of standing by precedent. So even if he was on the losing side in Arizona, he might defend that case and what it stands for today,” Muller said.

The justices may also decide to use idiosyncrasies of North Carolina law to decide the case in a way that would have less sweeping implications nationwide. The state law at issue in the case explicitly allows for court review of congressional maps, which applies for only a single election cycle.

Rick Hasen, a law professor at the University of California Los Angeles who specializes in election law, said a decision that hinges on that state law “may have some appeal for justices who want to avoid a negative precedent.”

“I think then it's just going to kick the can down the road, and then this issue is going to come up in another case,” Hasen said.

The case could well bubble up in another dispute over North Carolina’s maps, since legislators there have said they intend to redistrict again before the 2024 congressional elections. That may be less likely, though, since Republicans gained control of the state’s Supreme Court in this year’s elections.