Supreme Court questions theory on state power in federal elections

Justices at oral arguments sounded skeptical that state courts don't have the power to review state rules for congressional contests

Protesters hold signs at a rally during oral arguments in the Moore v. Harper case at the U.S. Supreme Court in Washington on Wednesday.  (Bill Clark/CQ Roll Call)
Protesters hold signs at a rally during oral arguments in the Moore v. Harper case at the U.S. Supreme Court in Washington on Wednesday. (Bill Clark/CQ Roll Call)
Posted December 7, 2022 at 4:21pm

A majority of justices on the Supreme Court sounded skeptical at oral arguments Wednesday that state courts can’t review state rules for congressional elections, part of a dispute over North Carolina’s congressional map.

Three Republican-appointed justices, along with the court’s three Democratic appointees, pushed back on an argument from North Carolina legislators that a clause in the U.S. Constitution gives them greater sway than the state Supreme Court on federal election rules.

The Republican legislators argued that the state Supreme Court does not have the power to find that the state constitution banned partisan gerrymandering and order a new map — a theory that some legal experts say could allow state lawmakers nationwide to upend election laws.

While most of the justices questioned the wisdom of cutting out state courts entirely, they also spent much of the nearly three hours of argument wading through what limits the federal Constitution placed on state courts.

Such a ruling could still end up siding with the North Carolina legislators. The justices are expected to rule on the case before the end of the term at the end of June.

Chief Justice John G. Roberts Jr. said the case presented a genuine question about when state courts or federal courts should have final say over congressional elections, including issues like redistricting.

“I think whichever way you think about in terms of how it should come out, I think you have to address the fact there is that tension, a tension that we address on a regular basis, between the state power and the federal power,” Roberts said.

Theory questioned

The arguments in the case revolve around the “independent state legislature theory” based on the Elections Clause of the Constitution. The clause says state legislatures have the power to set the “Times, Places and Manner” of federal elections, subject to legislation from Congress.

North Carolina legislators’ attorney David H. Thompson argued Wednesday that the plain language of the Constitution and historical precedents meant that state legislatures should have no “substantive” limits on the rules they can set for congressional races.

Justices Amy Coney Barrett and Brett M. Kavanaugh pointed to conflicts North Carolina’s position had with prior Supreme Court rulings on the role of state judges. Roberts pointed out that North Carolina’s legislature had conceded that a state governor could override the legislature’s election laws through a veto, but courts could not.

“That’s a pretty significant exception,” Roberts said. “It significantly undermines your argument.”

Justice Elena Kagan had a stronger rebuke for North Carolina, saying the theory would “get rid of the normal checks and balances on the way big governmental decisions are made in this country.”

The challengers to the map, along with the Biden administration, said the maximal version of the theory could “sow election chaos” across the country. Neal Katyal, representing the original map challengers, said every state constitution has some election clauses that govern both state and federal elections.

“The blast radius for this theory starts at extra large,” Katyal said, adding that it would mean hundreds of disputes would move from state courts to federal courts.

The Supreme Court previously rejected a version of the theory in 2015, when it held that an independent redistricting commission created by ballot measure in Arizona, rather than legislators, passed constitutional muster.

In a 2019 case, Rucho v. Common Cause, Roberts wrote an opinion that state courts could handle gerrymandering claims where federal courts could not.

Congressional role

In the case now before the Supreme Court, 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 a 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.

Throughout the argument, both sides cited Congress as a backstop for concerns about legislatures or courts run wild.

Thompson pointed out the House passed a bill this Congress, H.R. 4, that would have mandated an end to political gerrymandering nationwide.

“There is a check, there is a balance. We have the legal check from federal law and a political check the founders envisioned of going to Congress,” Thompson said.

Among the court’s conservatives, Justice Samuel A. Alito Jr. voiced some of the strongest support for North Carolina.

“Congress can always come in and establish the manner of conducting congressional elections,” regardless of the court’s ruling, Alito said.

Katyal, arguing for the original map challengers, called Congress a “special check” on state courts’ power.

“If there is a clause that is abstract and being misinterpreted, both the state process itself as well as Congress can come in and supplant that,” Katyal said.