The Supreme Court will hear oral arguments Wednesday in a congressional redistricting case out of North Carolina that experts argue could give additional influence to state courts over federal election proceedings by taking on the role of a “super legislature.”
At issue is a constitutional dispute over the power of state courts to regulate federal elections, including overriding gerrymandered redistricting maps. Some state lawyers are seeking a favorable interpretation of the “independent state legislature” (ISL) theory, asking for near-total control over federal elections regulation of the president and members of Congress.
A ruling from the high court could affect voting boundaries, mail-in and absentee ballots, voter ID requirements, as well as vote-counting and vote certification laws in the 2024 election and beyond.
“I think this is one of the most partisan moves by a state Supreme Court ever seen,” Hans von Spakovsky, Election Law Reform Initiative manager and senior legal fellow at the Heritage Foundation, told Fox News Digital. “Partisan redistricting has been going on in this country since we became a country, and it’s been going on in North Carolina since it became a state.”
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The case, Moore v. Harper, originally stems from a previous court ruling that threw out GOP-drawn congressional maps first submitted in November 2021 after North Carolina saw the addition of its 14th congressional seat. The maps were deemed unconstitutional by a majority Democrat State Supreme Court, with the GOP maps seemingly giving the Republican-led legislature an advantage in the state’s 14 congressional districts.
The court-drawn maps were ultimately used in the state’s midterm elections, producing seven seats for each party. The GOP state legislature is arguing that the use of the court-drawn maps is a violation of the General Assembly’s constitutional right per the elections clause.
The GOP legislature is now asking the Supreme Court to invoke the ISL doctrine, which hinges on the interpretation of the Constitution to mean that state legislatures have “plenary” or unqualified authority to decide how elections are conducted, absent almost any state judicial review.
Article 1 of the Constitution reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
“The North Carolina and United States Constitutions grant power over congressional redistricting to the branch of government closest to the people—the state legislature. Partisan state court judges have seized that power to redraw maps with no constitutional authority,” Rep. Timothy Moore, the named party in the lawsuit, told Fox News Digital in a statement. “This is an affront not only to the United States Constitution but to the voters who elected their representatives in North Carolina.”
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GOP advocates argue the case could have implications on the security of elections nationwide, as a decision siding with the North Carolina Supreme Court could give additional authority to state and federal courts to intervene in future election proceedings. Von Spakovsky said such a decision could lead to “anti-democratic” elections, with citizens looking to state and federal courts to “interfere with the rules, the laws, the regulations and the redistricting decisions of state legislatures” with little to no “checks on judges.
“The state Supreme Court basically acting not like a court, as if it’s a super legislature who can overturn the legislature’s drawing of the boundary lines of congressional districts,” von Spakovsky said.
However, many on the other side of the aisle view the independent state legislature doctrine as too broad, arguing the end result could negatively affect democracy as a whole and open the door to further gerrymandering in a political climate with low voter trust.
“This theory is a very reckless and discredited theory,” Michael Sozan, senior fellow at the Center for American Progress told Fox News Digital. “It has been rejected by the Supreme Court in various ways over the history of our nation. And the theory runs counter to what the Founding Fathers intended with our Constitution.”
The Supreme Court has yet to ever invoke the doctrine, despite being mentioned in a separate opinion in the 2000 Bush v. Gore case.
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“We believe every voter has the right to cast a ballot for the environment in free and fair elections and have their voice heard,” said Dan Crawford, director of government affairs for the North Carolina League of Conservation Voters, in a statement. “Moore v. Harper is about reaffirming a fundamental principle—that constitutional checks and balances apply to state legislatures and federal-election laws. Winning this case is vital to ensuring free and fair elections, which is ultimately how lawmakers are held accountable and how our organization stands up for clean air and water for the people of North Carolina.”
The respondents also specifically cite Rucho v. Common Cause, a 2019 Supreme Court case also out of North Carolina where the court ruled partisan redistricting was a political question outside the scope of federal courts. Experts on both sides of the aisle agree the 2019 case will prove to be pivotal in the court’s final ruling.
Von Spakovsky stated he believes the court will come to the same conclusion as in Rucho v. Common Cause in ruling that partisanship of congressional lines is a political question.
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“That would be one of the most speedy and unprecedented overruling of precedent in court history. And that’s one reason why a lot of people just find it so hard to believe that this is even being considered right now because [the Independent State Legislature theory] is completely at odds with what the Supreme Court said in the Rucho case,” Sozan said.
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In the November midterm elections, North Carolina flipped the majority on its state Supreme Court with the election of two new Republican judges to the bench. The state Supreme Court now has a GOP majority of 5-2, with the possibility of the legislature filing a motion to reconsider the Supreme Court’s opinion if the justices were to rule in favor of the respondents. However, despite the Republican majority, there is no guarantee the state Supreme Court would uphold the maps.