North Carolina legislators are asking the U.S. Supreme Court to rule on a legal theory that could have massive implications for elections around the country — and that several justices have already said they’re open to.
It’s related to the gerrymandering case the legislature recently lost when the court denied an appeal from GOP leaders. But even though the legislature lost that fight, The News & Observer reported last week, there is a good chance the court will take up the new appeal that has now been filed.
In February the N.C. Supreme Court, which has a Democratic majority, ruled along party lines that Republican lawmakers had unconstitutionally gerrymandered the state’s 14 U.S. House of Representatives districts. Republican leaders appealed to the U.S. Supreme Court, which has a majority of Republican-appointed justices, asking them to throw out the state court ruling in time for the 2022 midterms this year.
The court refused that request for a fast-tracked case, but Republican lawmakers still had the option to ask to make a broader argument for the future: that neither state courts, nor the executive branch, should have any authority over anything related to federal elections, including on topics like redistricting or voter ID. All power should belong to the state legislature, they plan to argue, in North Carolina and in every other state.
On Thursday they issued that argument formally. Now it’s up to the Supreme Court to decide if their argument should be heard.
“It is time to settle the Elections Clause question once and for all,” N.C. House Speaker Tim Moore said Thursday in a press release, referring to the part of the U.S. Constitution he believes backs up his argument.
The Supreme Court has already answered this question multiple times in the past, UNC law professor Michael Gerhardt told The N&O last week, consistently ruling against the argument Moore and his fellow lawmakers are trying to make now.
“The Court has rejected that narrow reading in favor of interpreting that clause to mean that ... there may be, and often are, issues to be decided by other state authorities, and state courts may have a role,” Gerhardt said.
Now that the legislature has asked the Supreme Court to hear their argument, they need four justices to vote to take it up. As The N&O previously reported, that’s likely to happen.
The court voted 6-3 to deny the legislature’s initial attempt to hear the case in time for this year’s elections, with conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch saying they wanted to consider it. A fourth, Brett Kavanaugh, said he agreed that the argument is important but thought the timing was wrong.
So it appears the legislature won’t have trouble getting the four votes needed for the court to hear the case. The bigger question is whether those four, if they do end up supporting the legislature’s argument, can get a fifth justice on board for a majority.
“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” Alito wrote in the dissent. “There can be no doubt that this question is of great national importance.”
The argument is controversial — Salon, a left-leaning political news site, recently wrote it could mean “literally the end of democracy” — because it would eliminate any checks and balances on the legislative branch for running elections.
But it has picked up steam in conservative legal circles in recent years. Despite the previous court rulings that have found otherwise, Moore said Thursday that “the U.S. Constitution is crystal clear” in favor of their argument. And his counterpart, N.C. Senate leader Phil Berger, said that: “We must continue this fight to restore the primacy of the legislature and put an end to these efforts to undermine its constitutional duty.”
The 2020 campaign of Republican former President Donald Trump used similar logic to argue that states with Republican-controlled legislatures should have been able to give their electoral votes to Trump, even if the people of the state voted for Democratic candidate Joe Biden.
Gerhardt said the theory’s resurgence stems from an unsuccessful argument the late Justice Antonin Scalia attempted to make as part of the Bush v. Gore case, when the Supreme Court made George W. Bush president in 2000. Three of the court’s nine current justices worked for Bush’s legal team on that case — Kavanaugh, Amy Coney Barrett and Chief Justice John Roberts.
Officials at the N.C. State Board of Elections oppose the argument that only the legislature can be involved in federal elections, saying it would lead to mass confusion, especially since there wouldn’t be a similar rule for other elections.
Laws could be struck down as unconstitutional, but only for non-federal elections like for governor or city council, the NCSBE wrote, while nevertheless remaining in place for elections for president or Congress. People could also be forced to register to vote twice, the board wrote in a previous brief to the court, in addition to other confusing or contradictory consequences.
“(The legislature’s) understanding of the Elections Clause would threaten to invalidate the elections regimes in every state in the nation,” the NCSBE wrote.
