WASHINGTON — The Supreme Court’s conservative majority hinted Wednesday they may rule narrowly for Republican state lawmakers in North Carolina who are claiming a right to set election maps and rules without review by state courts.
The justices heard arguments in a partisan gerrymandering case that raised a major question of election law.
At issue was whether the state’s lawmakers have exclusive power to draw congressional election maps that give their party a lopsided advantage, or if those maps are subject to invalidation or modification by the state Supreme Court.
There was no clear consensus on how to rule, but the six conservative justices suggested they were more inclined to limit the power of state judges, rather than limit the discretion of partisan lawmakers.
North Carolina’s GOP leaders have accused state judges of interfering with the constitutional authority of state lawmakers. They noted the Constitution says the rules for electing members of Congress “shall be prescribed in each state by the legislature thereof.”
Lawyers representing Democratic Party leaders and voters in the state called that theory radical, and said it would overturn basic principles of checks and balances.
In their comments, Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett seemed to search for a compromise, a ruling that would allow state courts to review election plans, but require judges to defer to lawmakers.
Under this approach, a state court could block an election map, but then only send it back to the legislature to try again rather than impose changes itself.
The so-called independent state legislature theory has raised alarms for many, coming just two years after then-President Donald Trump and some of his allies sought to overturn his defeat by having partisan state legislators declare him the winner.
Republicans argue the Constitution gives the legislature the independent and exclusive authority for setting rules on casting and counting ballots as well as drawing election maps.
For most of American history, however, this has not been the understanding of the law. State judges and state supreme courts routinely oversee voting disputes for federal, state and local elections.
A separate but similar provision of the Constitution applies to presidential elections. It says “each state shall appoint” the electors who vote for president “in such manner as the Legislature thereof may direct.”
That provision is not at issue in the North Carolina case, and all states by law choose their electors based on the popular vote.
But some election law experts fear a Supreme Court ruling putting more power in the hands of state legislators could encourage some to claim the power to appoint alternate electors pledged to support the legislators’ presidential candidate rather than the one chosen by voters. Such a move was advocated by some Trump supporters in 2020.
The case would also impact state redistricting efforts.
Last year, the GOP-controlled Legislature in North Carolina drew an election map that would have all but assured Republicans would win 10 of 14 House seats. Common Cause and others sued, and the state Supreme Court, which had a majority of Democratic appointees, struck down the map because it gave an “extreme partisan advantage” to the Republicans.
State judges chose a panel of election experts who drew a new map which would more fairly reflect the state’s political makeup.
In February, North Carolina Republicans, led by House Speaker Timothy Moore, sent an emergency appeal to the Supreme Court asking the justices to block the state ruling and restore the GOP-friendly map. The justices refused to intervene, over dissents by Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.
Justice Brett M. Kavanaugh said it was late to change the districts again prior to the midterm election, but he expressed interest in deciding the underlying legal question.
In June, the court voted to hear the case of Moore v. Harper and decide whether state judges may strike down an election map drawn by the Legislature.
When voters went to the polls in North Carolina last month, they elected seven Republicans and seven Democrats.
