RALEIGH, N.C. — Republican lawmakers lost their recent U.S. Supreme Court appeal to stop the 2022 elections from being held using district maps the lawmakers didn’t get to draw themselves. But some in the party hope Monday’s ruling is just the first step in a coming legal fight, and not the final word.
That’s because the core of the GOP’s argument is about much more than just maps and redistricting.
And the court could still take it up, if the legislature asks.
“We are evaluating our options and have not made any final decisions,” said Lauren Horsch, a spokeswoman for N.C. Senate leader Phil Berger.
The legislature’s argument is that state courts should have no power to make any decisions that affect federal elections — including, but not limited to, gerrymandering lawsuits. Neither should the executive branch, the lawmakers argued. Instead, they say, all decision-making power and influence over federal elections should belong to the legislature alone.
It would be a radical change if the Supreme Court agreed, reversing longstanding norms for how elections work nationwide, say critics.
“The state lawmakers are making an argument that the Supreme Court has rejected more than once,” said Michael Gerhardt, a UNC Law School professor who served as a top lawyer for congressional Democrats during the Senate nominations for eight of the nine justices currently on the Supreme Court.
Monday’s decision denying the GOP appeal wasn’t unanimous, however. The dissenting opinion indicates that at least a few justices on the court do believe the legislature has a good argument.
“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,” the dissent says. “There can be no doubt that this question is of great national importance.”
What’s the argument?
This new North Carolina case is not the first to push the argument, known as the “independent state legislature doctrine.”
The claim is that when it comes to running federal elections, there can be no checks and balances from other branches of government because the legislative branch should have all the power.
The only check on state legislatures, those who favor this argument have said, should be Congress — not the courts, the executive branch or state constitutional amendments that might do things like ban gerrymandering.
The argument hinges on a part of the U.S. Constitution that says “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
The N.C. State Board of Elections submitted a wide-ranging legal brief earlier this month in opposition to the legislature’s argument, The N.C. Insider previously reported, in which the state’s elections officials said a ruling in favor of the legislature would have widespread negative and unintended consequences.
The legislature’s argument “would threaten to invalidate the elections regimes in every state in the nation,” the elections board wrote.
Legal scholars have pointed to court rulings, dating back over a century to at least 1916, and as recent as 2015, that do not accept the narrow interpretation that the independent state legislature doctrine proposes. But the argument has nonetheless gained steam in Republican political circles in recent decades.
The late Supreme Court Justice Antonin Scalia unsuccessfully endorsed the idea during the Bush v. Gore case that made George W. Bush president in 2000, Gerhardt said. Supreme Court Justices John Roberts, Amy Coney Barrett and Brett Kavanaugh all worked with Bush’s legal team in the case.
The 2020 campaign of Republican President Donald Trump also pushed the theory, The New Yorker reported, to argue that Republican-controlled legislatures in states that voted for Democrat Joe Biden should have been able to give their electoral votes to Trump instead.
Despite the precedent in favor of the status quo, North Carolina Republicans say it’s time for the Supreme Court to rethink the issue. In their original application for an appeal, they pointed to a court in Minnesota that recently issued a ruling they say backs up their argument.
“The alternate interpretations of the Elections Clause adopted by these different decisions cannot be reconciled, and (the U.S. Supreme Court) has the solemn responsibility to intervene to resolve the disagreement,” the lawmakers wrote. “This division of authority is not over some trifling matter, but over an issue ‘of the most fundamental significance under our constitutional structure.’”
How might SCOTUS rule?
The Supreme Court won’t automatically take up the case, but there is a good chance that the case will be heard if the GOP legislative leaders ask.
They need four of the nine justices to sign off. And they appear to have that support already, based on several justices’ comments when the court denied the emergency request Monday.
“The next step for the case is for the justices to hear the same case on its merits,” Horsch wrote in an email. “That would require legislative defendants to file a petition for writ of certiorari. In order for the case to proceed on its merits, four justices need to agree to grant the petition.”
There appear to be at least four votes for letting the legislature argue its case at some point, based on Monday’s 6-3 ruling that denied the legislature’s emergency request to move forward before the election.
The three dissenters were Samuel Alito, Clarence Thomas and Neil Gorsuch. A fourth justice, Kavanaugh, sided with the majority but wrote a separate, concurring opinion that indicated he agreed the argument was an issue the court should address — just not so close to the 2022 elections.
All four of them are in the court’s conservative wing, along with Chief Justice Roberts and Barrett. Roberts, Barrett and Kavanaugh joined with the court’s more liberal justices, Elena Kagan, Sonia Sotomayor and Stephen Breyer, in denying the legislature’s initial request this week.
So while it seems likely that state lawmakers could get their case heard, whether they would win is still up in the air.
One possible scenario could have Alito, Thomas, Gorsuch and Kavanaugh all voting in favor of the legislature, with Roberts, Kagan, Sotomayor and Breyer all voting to uphold past precedents and rule against the legislature. If so, that could leave Barrett as the swing vote who would decide the case.
It’s tough to predict which way she might lean, Gerhardt said.
“She may be open to this argument, though it appears she joined the majority in deciding not to take the most recent case out of North Carolina,” Gerhardt said. “She claims to follow Justice Scalia as a model, and he was open to the argument.”
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