RALEIGH, N.C. — The United States government is so opposed to a theory North Carolina lawmakers plan to argue in front of the Supreme Court that it now wants to be included in oral arguments.
In briefs filed Wednesday, U.S. Solicitor General Elizabeth Prelogar asked to be allowed to participate in the case and said that if the court sides with North Carolina’s argument, it “would severely disrupt the administration of elections around the nation, forcing states to hold state and federal elections under different rules and flooding the federal courts— especially this Court — with new election challenges.”
There’s no guarantee the Supreme Court will allow the Department of Justice to join oral arguments, scheduled for Dec. 7, but it is usually allowed. Either way, having the federal government officially back the group of local voters and nonprofits who are fighting the legislature makes a statement, said their lead attorney, Durham’s Allison Riggs.
“It is a big deal,” she told reporters Thursday.
The case, named Moore v. Harper after N.C. House Speaker Tim Moore, deals with the Independent State Legislature theory.
The theory argues that where federal elections are concerned, the normal system of checks and balances in American government should no longer apply. The legislative branch, Moore and other Republican lawmakers say, should have the power to pass laws affecting federal elections without state courts being able to rule those laws unconstitutional.
“This case is not only critical to election integrity in North Carolina, but has implications for the security of elections nationwide,” Moore wrote in a news release when the court agreed this summer to take the case.
Legislative leaders recently made similar arguments — that state courts should also be banned from getting involved in lawsuits over state and local elections — at the N.C. Supreme Court, the News & Observer has reported.
Opponents say allowing state legislators around the nation to ignore their state constitutions could lead to rigged elections and potentially the end of democracy itself.
Supporters say that’s an overreaction, and that this is how the Founding Fathers really meant for the rules to work. Similar arguments have failed at the Supreme Court multiple times throughout U.S. history. But Moore and other backers of the theory are hoping the court’s current 6-3 conservative majority will see things differently.
The case is specifically about gerrymandering. Last year Republican lawmakers drew new political districts that would’ve likely led to Republicans winning 10 of the 14 U.S. House of Representatives seats for North Carolina, even if they lost the popular vote statewide.
The N.C. Supreme Court, which has a Democratic majority, struck that map down as unconstitutionally gerrymandered. Republican leaders responded by asking the U.S. Supreme Court to issue a ruling that no state court anywhere in the country has the power to make that sort of decision. On Dec. 7, they’ll get the chance to argue their case in person at the court.
But the theory extends beyond just gerrymandering, hypothetically allowing states to set up entirely different systems of rules for state and federal elections.
Some have even said — although there’s disagreement on this point — that it could allow state legislatures to ignore the presidential vote in their states and give their electoral votes to whichever candidate state legislators prefer.
Half a dozen Republican-led states where the people voted for Democratic President Joe Biden in 2020 attempted to do just that, forming fake slates of presidential electors intended to keep Republican President Donald Trump in power despite losing the election. That didn’t work in 2020, but some fear this case would pave the way for a similar strategy in 2024 and beyond.
This case specifically deals with a clause in the Constitution about congressional elections. But there’s a nearly identical clause about presidential elections. So some believe that however the court rules on this case would set a precedent for presidential elections.
One of them is Michael Luttig, a Republican attorney and retired federal judge. Luttig, who has since joined the legal team fighting against the legislature’s theory, was an adviser to Vice President Mike Pence in the hectic days leading up to the Jan. 6 attack on the Capitol. Some GOP lawmakers believed they could overturn the election results with Pence’s cooperation, based on this same theory.
“I advised Vice President Pence on Jan. 5 that he had no authority to revise the electoral count,” Luttig said Thursday.
Some who attacked the Capitol the next day chanted “hang Mike Pence” and put up a gallows just outside, after Trump publicly excoriated Pence for not going along.
Prelogar, the solicitor general, who was appointed as the country’s top Supreme Court lawyer by Biden after he took over from Trump last year, didn’t wade into that debate in her brief. She focused more on allegations of election chaos in general.
“Court orders relying on a state constitution to resolve disputes about voting hours, voter eligibility, or absentee voting would govern state races, but not the federal contests being decided on the very same ballots. That result risks magnifying confusion and uncertainty for both voters and election officials,” she wrote.
The U.S. Department of Justice’s brief Wednesday was one of dozens that have been filed in the case. The Republican National Committee and few other GOP groups have filed briefs supporting North Carolina in the case. But the vast majority oppose the theory.
Its opponents span the political spectrum from progressive Vermont Sen. Bernie Sanders to high-ranking White House officials under Republican presidents Trump and George W. Bush.
Numerous Democratic members of Congress signed briefs opposing the theory. It doesn’t appear that any current Republican members of Congress signed briefs either for or against it, although a number of retired Republican politicians oppose it. Former California Gov. Arnold Scwarzenegger, a Republican, also signed a brief in opposition and added on Twitter that “Frankly, this theory is nuts.”
Even a co-chairman of the Federalist Society wrote to oppose the idea. The highly conservative legal group has helped coordinate hundreds of millions of dollars in recent years aimed at pushing the federal judiciary further right, The Washington Post reported in 2019. At least a few current Supreme Court justices were hand-picked by the Federalist Society for their position on the nation’s highest court.
Steven Calabresi, whose Federalist Society biography says he has been a chairman on its board of directors for decades, began his brief by praising the Supreme Court’s recent decision to overturn Roe v. Wade. He said it was based on the “originalist” legal philosophy many conservative judges espouse. That same principal should now lead the Supreme Court to shoot down North Carolina’s arguments, he said.
“Principled originalism compels rejection of (the legislature’s) claims,” Calabresi wrote. “The more one knows about the Constitution’s text, history, and deep structure, the clearer it is that (the legislature) must lose.”
Riggs, who helps lead the highly liberal Southern Coalition for Social Justice, said she wasn’t expecting such “unusual allies” in this legal fight but thinks it bolsters their argument.
“‘This is not a partisan issue,” she said. “I was so thrilled yesterday when I looked through the list.”
