WASHINGTON (AP) — The Supreme Court on Wednesday appeared skeptical of issuing a sweeping ruling that would leave state lawmakers virtually unchecked in shaping the rules for congressional and presidential elections.
In nearly three hours of arguments, the liberal and conservative justices appeared to be contesting the primary objective of a challenge that asked them to essentially eliminate the power of state courts to tear down Congressional district maps drawn by the legislature and manipulated on the grounds that violate state constitutions.
But it was harder to see exactly where the courthouse would land. Notably, a trio of conservative justices likely to control the outcome, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, have indicated they may be willing to impose restrictions on the state court’s power in limited circumstances.
The case has profound potential effects on elections and democracy, and is also a new test case for the court which has been increasingly criticized for becoming politicized.
The North Carolina Republicans who took the case to the high court argue that a provision of the US Constitution known as the election clause gives state legislators virtually total control over the “time, place, and manner” of congressional elections, including the redistricting. That means barring state courts from the process, they say.
Republicans are advancing a concept called “independent legislature theory,” never adopted by the Supreme Court but previously cited approvingly by four conservative justices. In the courtroom Wednesday, Liberal Judge Elena Kagan called it “a new challenge” that “eliminates the usual checks and balances.”
A sweeping ruling could threaten hundreds of election laws, require separate rules for federal and state elections on the same ballot, and lead to new efforts to redraw congressional districts to maximize partisan advantage.
“This is a theory with big consequences,” Kagan said, which would allow for “the most extreme forms of gerrymandering by legislatures.” The other liberal judges, Sonia Sotomayor and Ketanji Brown Jackson, also appeared in favor of the role of state courts in the trial.
David Thompson, the attorney representing North Carolina Republicans, said overly partisan redistricting was an issue the framers of the Constitution believed should be addressed in the political arena, not in state or federal courts.
On the other hand, lawyers defending the state courts’ role have told the judges their decision could result in major changes to the election.
Fully embracing what Thompson argued “would wreak havoc on election administration across the nation,” said Attorney General Elizabeth Prelogar, representing the Biden administration. Neal Katyal, who represents North Carolina voters and voter advocacy groups, warned of a large “blowout radius” from a ruling for North Carolina Republicans.
While there seemed to be a lack of support for the broader outcome, Roberts has spoken out on several occasions about the tension between the federal and state judiciaries.
“So you accept the proposition that this court has a particular role to evaluate … how is that conflict resolved in a particular case?” Roberts asked Prelogar.
Barrett also asked questions suggesting he believes state courts may be going too far in trying to oversee federal elections in a way that could violate the US constitution.
The court’s decision in the North Carolina case could also hint at how justices would treat another part of the constitution — not at issue in the present case — that gives lawmakers the authority to decide how presidential electors are nominated. That provision, the election clause, has been instrumental in trying to overturn the outcome of the 2020 presidential election in several hotly contested states.
The North Carolina state Supreme Court struck down the Republican-designated districts that control the Legislature because they heavily favored Republicans in the highly competitive state. The court-drawn map used in last month’s election for Congress produced a 7-7 split between Democrats and Republicans.
North Carolina is among six states in recent years in which state courts have ruled that overly partisan redistricting for Congress violated their state constitutions. The others are Florida, Maryland, New York, Ohio and Pennsylvania.
State courts have become the sole legal forum to challenge partisan congressional maps since the Supreme Court ruled in 2019 that such lawsuits cannot be brought in federal court.
Roberts, writing for the court then and joined by four other conservative justices, noted that state courts remained able to act.
“Provisions in state statutes and state constitutions can provide standards and guidelines for enforcement by state courts,” Roberts wrote, in a joint opinion by Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Kavanaugh.
But Alito, Gorsuch and Thomas seemed to mostly favor North Carolina’s Wednesday arguments limiting the authority of state courts.
“What is the source of authority for the state Supreme Court of North Carolina to be involved in a federal election?” Thomas asked.
Alito suggested that elected state court judges have no role to play in congressional redistricting.
“So there has been a lot of talk about the impact of this decision on democracy. Do you think it is pro-democracy to move the political controversy over districts from the Legislature to elected supreme courts where candidates are allowed by state law to campaign on the districting issue? she asked.
Gorsuch said that preserving the North Carolina court ruling might be politically popular because it aimed to combat partisan linework, but that the same logic may have led in earlier eras to advocate politically hateful positions enshrined in state constitutions, including the enslaved blacks count as three-fifths of a person under the Virginia constitution.
“The point of political relevance depends on which ox is being gored at a particular moment,” Gorsuch said.
Donald Verrilli, who represents North Carolina in defense of the court ruling, said the Supreme Court should not ignore what he described as growing opposition to partisan fraud.
«It is more than the ox of the gored. This is a very important issue in this country,” said Verrilli, who was previously the Obama administration’s lead Supreme Court attorney.
Kavanaugh has written separately about the need for federal courts to review the actions of state courts when it comes to federal elections, citing an opinion by three conservatives in the case of Bush v. Gore that settled the 2000 presidential election. Thomas was one of three justices on that 22-year-old opinion, but the court decided the case on other grounds.
In North Carolina, Republican lawmakers won’t have to wait for a Washington high court decision to produce a new map of Congress that is expected to have more Republican districts.
Even as Democrats won half of the state’s 14 congressional seats, Republicans took control of the state’s Supreme Court. Two newly elected Republican judges give them a 5 to 2 lead which makes the state court more likely to support a map with more Republican districts.