WASHINGTON — The Supreme Court hears a major election law case on Wednesday that began with North Carolina Republicans drawing a highly partisan redistricting map and could end with politicians winning unchecked power over federal elections.
At issue is whether state judges and governors play any role in reviewing or modifying election rules for the state or if this power rests exclusively with a state legislature.
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.
North Carolina Republicans are pitching their appeal to the Supreme Court conservative majority by arguing their claims reflect the original meaning of the Constitution, which says the “times, places and manner of holding elections” for members of Congress “shall be prescribed in each state by the legislature thereof.”
Republicans argue these words show the Constitution gave 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.
