The Supreme Court on Thursday agreed to review an effort by Republican lawmakers in North Carolina to advance a sweeping legal theory that, if successful, could hand state legislatures broad new powers over how voting maps are drawn and federal elections conducted.
Viewed narrowly, the case is an appeal from a state court’s ruling that a new Republican-drawn North Carolina voting map amounted to an illegal partisan gerrymander.
But the breadth of the legal argument put forth by the Republican challengers raises the stakes of the case considerably, legal experts say.
“An extreme version of the theory would shut down state courts’ ability to rein in partisan gerrymandering and protect voters’ rights in federal elections,” said Rick Hasen, a professor at UCLA Law.
The justices will hear the case next term, which begins in October, with a decision likely in 2023. Arguments have not yet been scheduled.
The Republican challengers in the case have urged the justices to rule in their favor by finding that the Constitution’s Elections Clause hands state legislatures near total control over how federal elections are carried out in their state, a theory known as the “independent state legislature doctrine.”
That constitutional provision — Article I, Section 4, Clause 1 — states in relevant part: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
If the Supreme Court embraces a maximalist interpretation of this provision, it could effectively shield state lawmakers from judicial review in states courts when it comes to setting election rules and drawing voting district maps.
“This case is about more than gerrymandering in North Carolina,” said Zachary Schauf of Jenner & Block, who represents the North Carolina League of Conservation Voters in the case. “It concerns a core principle from the earliest days of our Republic – that state laws governing federal elections are subject to the constraints that the people wrote into their state constitutions.”
A win for North Carolina Republicans could further insulate partisan gerrymandering from legal challenges. As a result of the Supreme Court’s 2019 decision in Rucho v. Common Cause, such allegations cannot be litigated in federal courts because they raise political, not judicial, questions, the court ruled in its 5-4 decision.
Top Republican lawmakers in North Carolina had previously asked the Supreme Court in February to intervene in the case and block state court rulings that tossed GOP-drawn voting maps. The justices declined that request, leaving intact the state court decision to substitute a judicially endorsed map and handing a win to Democrats in the fight over the once-per-decade process of drawing new congressional and legislative voting districts following the U.S. Census.
At the time, the court’s three staunchest conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — indicated that they would have ruled for the North Carolina lawmakers.
Justice Brett Kavanaugh wrote an opinion concurring in the court’s decision to deny the request. But his opinion made clear that his vote against the GOP lawmakers’ request was guided by the fast-approaching midterm elections, not the underlying merits of their claim, which he said the court would need to address soon.
Thursday’s move by the court to agree to review the case, Moore v. Harper, means that four or more justices voted to grant the appeal.
—Updated at 2:14 p.m.