The court is set to hear arguments Wednesday in a case from North Carolina, where Republican efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violated the state constitution. A court-drawn map produced seven seats for each party in last month’s highly competitive North Carolina midterm elections. The question for the justices is whether the provision of the U.S. Constitution that gives state legislatures the power to make rules about the “times, places, and manner” of congressional elections excludes state courts from the process. “This is the most important case for American democracy — and for American democracy — in the history of the nation,” said former federal judge Michael Luttig, a prominent conservative who has joined the legal team defending the court’s ruling. North Carolina. Republican leaders of the North Carolina legislature told the Supreme Court that the “carefully drawn lines of the Constitution place the regulation of federal elections in the hands of state legislatures, Congress and no one else.” Three conservative justices have already expressed some support for the idea that the state court had improperly taken powers granted by the Constitution when it comes to federal elections. A fourth wrote approvingly of limiting the power of state courts in this area. But the Supreme Court has never invoked what is known as the independent state legislative theory. However, it was cited in a separate opinion by three conservatives in Bush v. Gore that tipped the 2000 presidential election. If the court were to recognize that now, the concept’s opponents argue, the effects could be far broader than simple redistribution. The stronger ruling for North Carolina Republicans could undermine more than 170 state constitutional provisions, more than 650 state laws that give state and local officials power to make election policies and thousands of regulations down to the location of polling places , according to the Brennan Center. in Justice at New York University School of Law. Luttig, who advised former Vice President Mike Pence that he did not have the power to throw out electoral votes after the 2020 election, is among several prominent conservatives and Republicans who have rallied against the blanket claim that legislatures cannot be challenged in state courts . make decisions about federal elections, including congressional redistricting. That group includes former California Gov. Arnold Schwarzenegger, law professor Stephen Calabresi, founder of the conservative Federalist Society, and Benjamin Ginsberg, a longtime lawyer for Republican candidates and the party. “Unfortunately, due to continued and widespread efforts to sow distrust and the spread of misinformation, confidence in our elections is at an ebb,” Ginsberg wrote in a Supreme Court filing. “The version of the independent state legislature theory advanced by the petitioners in this case threatens to make a bad situation much worse, exacerbating the current moment of political polarization and further undermining confidence in our elections.” The arguments come a day after the final 2022 midterm showdown in the Georgia Senate runoff between Democratic Sen. Raphael Warnock and Republican Herchel Walker. In that showdown, state courts ruled in favor of Democrats to allow voting on the Saturday before the election, over Republican objections. Jason Snead of the conservative Honest Elections Project said the case is an opportunity for the high court to rein in out-of-control state courts, which have been pressured by Democratic lawyers to effectively create new rules governing voting, including the Georgia example . “We’ve seen a pretty widespread effort to use the courts to rewrite election laws if those laws don’t fit partisan agendas,” Snead said on a call with reporters. “That’s not something we want to see when it goes against the Constitution.” He is among supporters of the high court’s intervention who say the case is not a “threat to democracy”. Instead, justices can write a narrow view that puts limits on state courts without overturning choices New York and other states have made to limit partisan redistricting, a group of New York voters wrote in a court filing. New Yorkers implicitly acknowledge that if the court gives more power to state legislatures to tow congressional lines, Republicans may not necessarily benefit. During the last redistricting cycle, states that used independent redistricting commissions instead of legislatures were largely those dominated by Democrats. The committees picked up 95 House seats in states with Democratic legislatures and governors, compared to just 12 in GOP-controlled states. A decision that gives legislatures final authority over redistricting could eliminate those committees and allow Democrats to redraw a major chunk of the House map. “The bottom line is that the impact of this fringe theory would be tremendous,” said former Attorney General Eric Holder, chairman of the National Democratic Redistricting Committee. “It could unleash a wave of aggression from both sides.” Even less dramatic changes might not necessarily tilt the GOP’s way in a national redistricting map that was essentially a tie and where state court rulings cost Democrats as many House seats as Republicans. The Supreme Court declined to intervene in the North Carolina case in March, allowing the court-drawn districts to be used this year. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented. Writing for the three, Alito said “there must be some limit to the power of state courts to override actions taken by state legislatures in setting rules for the conduct of federal elections. I believe it is likely that the petitioners will succeed in demonstrating that the North Carolina Supreme Court overstepped those boundaries.” Judge Brett Kavanaugh has written separately about the need for federal courts to review the actions of state courts when it comes to federal elections. Chief Justice John Roberts’ track record on this issue gives both sides some hope. In 2015, he wrote a heated dissent to the court’s ruling supporting an independent redistricting commission in Arizona. Roberts wrote that the Constitution does not allow “a state to completely exclude the “legislature” from redistricting. “ But in 2019, Roberts wrote the court’s majority that closed federal courts to partisan gerrymandering claims, but left state courts open. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote, in an opinion joined by Alito, Gorsuch, Kavanaugh and Thomas. The court’s other conservative justice, Amy Coney Barrett, has no record in this area. In North Carolina, a new round of redistricting is expected to go ahead next year and create a map with more Republican districts, regardless of the outcome of the high court case. In last month’s election, voters overturned a majority on the state Supreme Court, electing two new Republican justices that give the GOP a 5-2 advantage and make it likely, though not certain, that the court would uphold a map with more Republican districts .
Associated Press writers David A. Lieb in Jefferson City, Missouri, Nicholas Riccardi in Denver and Gary D. Robertson in Raleigh, North Carolina, contributed to this report.
