Dem
51
GOP
49
The North Carolina state legislature drew an exceedingly gerrymandered congressional map in 2020. It gave the Republicans 10 seats to the Democrats' 4, even though the partisan split in the state is close to 50-50. The Democrats sued and won in the trial court but that verdict was reversed by the state Supreme Court. Now the case is with the U.S. Supreme Court.
The legislature's argument is based on Art. 1, Sec. 4, Clause 1 of the U.S. Constitution, which reads:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The legislature is arguing that this clause gives the legislature alone the power to draw the maps and the courts must butt out. In the legislature's view, they have absolute power to run elections and the courts have no authority to review their decisions. In this view, it would be legal for a legislature to say that only straight white Christian men who own real estate assessed at $1 million or more can vote and there is nothing the courts can do about it. This is democratic because if the people don't like what the legislators are doing, the people who are allowed to vote can replace them. Or Congress can overrule them. They call this the "Independent State Legislature (ISL) theory." The Supreme Court case is called Moore v. Harper. Yesterday the Court held the oral hearing on the case.
The questions went on for over 3 hours, even longer than the case about whether Lorie Smith can refuse to design websites for gay couples. You can't always tell from the questions how justices will vote. Sometimes they ask probing questions just to see how the lawyers will react. But from the questions, it appears that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch are fine with the ISL theory. If James Madison meant, for example, that the legislature could pass laws to run elections (which would give the governor veto power), he should have written that down. He didn't, so the governor is out of the loop here. It is hard to imagine that is what he had in mind because just about everything else the legislature does is by passing laws—which the governor can veto. This was probably just a poor choice of words than an intentional move to veto the governor. The three Democratic appointees were aggressively hostile to the ISL theory and hammered the legislature's lawyer.
So it may come down to Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett. They seem to be looking for a compromise in which the state Supreme Courts would generally have the last word, but in rare cases the federal courts would get involved. That is a far cry from "the courts have no business reviewing what the legislatures do."
A lawyer for the NC legislature, David Thompson, made it clear that he believes the state Supreme Court has no authority to tell the legislature to draw a new map simply because it is a partisan gerrymander that violates the state Constitution. Elena Kagan noted that the legislature is trying to get rid of the checks and balances in the Constitution and make itself supreme. Samuel Alito didn't like the idea of state judges assessing constitutionality because they are elected. And nobody trusts folks who are elected. Only folks with lifetime appointments (like himself) can be trusted.
Harper is the second election law case the Supreme Court has taken up this term. In October, it took up an Alabama case about whether maps can be gerrymandered to dilute the power of racial minorities. (V)