The Supreme Court on Wednesday appeared to search for a middle path in an election law clash with weighty stakes for American democracy involving a bid by North Carolina GOP lawmakers to reinstate a Republican-drawn voting map.
Questions posed during three hours of oral argument suggested there was not a majority of justices eager to embrace a sweeping legal theory advanced by Republican state lawmakers that would give near-total authority to state legislatures to design congressional districts and shape the rules governing federal elections in the states.
Instead, some of the court’s conservative justices seemed to favor an outcome that would preserve some role — though perhaps a diminished one — for state courts and constitutions in regulating federal elections.
“You suggest that there’s a ‘narrower alternative ground’ to decide the case in your favor, which would allow some substantive state restrictions to be enforced,” Chief Justice John Roberts asked David Thompson, who represented North Carolina’s legislative leaders. “Could you articulate what that is?”
Conservative Justices Brett Kavanaugh and Amy Coney Barrett also posed questions that seemed to reflect interest in a ruling that would stop short of completely insulating state legislatures from state-level constraints in carrying out federal elections.
In concrete terms, the case argued Wednesday was an appeal of a ruling by North Carolina’s top court that ordered a new congressional map to be drawn after finding the GOP’s version violated the state constitution due to its pro-Republican skew.
But the dispute’s broader implications for the future of U.S. democracy have seized national attention.
The North Carolina Republicans’ maximalist argument is that because state legislatures’ power to regulate federal elections comes directly from the U.S. Constitution, legislatures need not follow voter protections built into state constitutions. In effect, this would shield legislatures from state court oversight and state-constitutional checks in setting rules for how congressional elections are administered, counted and perhaps even decided.
Voters and voting rights groups, for their part, urged the justices not to foreclose a role for state courts, constitutions and election administrators in regulating federal elections.
Neal Katyal, who argued on behalf of voting rights advocates, cautioned that such a ruling would mean “opening Pandora’s box.”
“To accept petitioner’s claim,” Katyal said, “you’d have to ignore the text, history and structure of our federal constitution, as well as nearly every state constitution today.”
The Supreme Court’s three liberal members appeared hostile to the most muscular version of the theory put forth by the North Carolina legislative leaders.
At one point during arguments, liberal Justice Elena Kagan told their lawyer: “I would think that our precedent gives you a lot of problems.” Among the decisions she pointed to was the 2019 case of Rucho v. Common Cause, in which the court ruled 5-4 that federal courts could not review partisan gerrymandering claims — but left the door open for state-court review.
Kagan later turned to what she depicted as the dire consequences of an expansive ruling in favor of the North Carolina Republicans.
“This is a theory with big consequences,” Kagan said. “It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that’s a violation of the constitution. It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution in fact prohibits. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated.”
“In all these ways, 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,” she continued. “And you might think that it gets rid of those checks and balances at exactly the time when they are needed most.”
The once-fringe legal theory at issue, known as the “independent state legislature” doctrine, briefly gained prominence in 2000 when it appeared in a Bush v. Gore concurrence before it largely fell dormant. But in recent years the concept has received fresh attention in conservative legal circles.
The theory is premised on a provision of the U.S. Constitution called the Elections Clause, which states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
At various points, questions posed by some of the court’s staunchest conservatives — Samuel Alito, Clarence Thomas and Neil Gorsuch — suggested they were receptive to reading the Elections Clause as giving exclusive authority to state legislatures. Earlier this year, those same justices indicated that they would have issued a temporary ruling in favor of the North Carolina lawmakers that would have allowed the state’s GOP-drawn map to be used in the 2022 elections.
Much of Wednesday’s hearing concerned whether and how the justices could interpret the Elections Clause not as a sword to be wielded against state courts, but as something of a constitutional shield. Under this view, the Supreme Court would have the power to overrule state supreme courts that depart too radically from legislative measures governing federal elections.
Elizabeth Prelogar, the U.S. solicitor general, said the justices should generally defer to election-law decisions issued by state supreme courts. But the U.S. Supreme Court could make exceptions in cases where state courts go so far as to effectively carry out a legislative function on their own.
“If the state court decision is so lacking in any basis and has no fair or substantial support and can only be understood as an effort to frustrate federal rights,” Prelogar said, “then the [Supreme Court] can look past that decision.”
A ruling in the case, Moore v. Harper, is expected by late June.
Updated at 3:03 p.m.