The Supreme Court is poised to confront the case of a new election. A GOP-led challenge is asking justices for a new ruling that may significantly increase state lawmakers’ power over presidential and congressional elections.
The court will hear arguments this week in a case from North Carolina where efforts by Republicans to draw congressional districts that favor them were blocked by the Democrat majority of the state Supreme Court because it ruled the GOP map violated the state constitution.
Seven seats were produced for each party in the November midterm from a court-drawn map in the highly competitive state.
One question for justices is whether the United States Constitution’s provision that gives legislatures in states the power to make rules about the “times, places and manner of congressional elections removes state courts from the process.
“This is the single most important case on American democracy — and for American democracy — in the nation’s history,” said Michael Luttig, a former federal judge and prominent conservative who joined the legal team defending the North Carolina court decision.
North Carolina’s GOP legislative leaders told the Supreme Court the Constitution’s “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else.”
Three conservative-leaning justices voiced some support for the idea that the state Supreme Court improperly took powers given by the Constitution regarding federal elections.
Ruling for North Carolina Republicans may undermine state provisions
A robust ruling for North Carolina Republicans could undermine over 650 state laws and more than 170 state constitutional provisions delegating authority to make election policies to local and state officials, and polling places, according to New York University’s Brennan Center for Justice.
The arguments before the Supreme Court will take place a day after the final contest of the 2022 midterms, the Georgia Senate runoff between Republican candidate Herschel Walker and Democrat Senator Raphael Warnock. In that race, state courts ruled in favor of Dems to allow voting the Saturday before the election, despite Republican objections.
The U.S. Supreme Court refused to step into the case in March in North Carolina, which allowed the court-drawn biscuits to be used this year.
Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito dissented. Alito, writing for the three, said, “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they have prescribed rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”
Justice Kavanaugh wrote separately about the necessity for federal courts to monitor the actions of state courts when it comes to national elections.
The record of Chief Justice John Roberts on this question gives hope to both sides. In 2015, Roberts wrote a strong dissent from the court’s decision to uphold an independent redistricting commission in Arizona.
The Chief Justice wrote the Constitution doesn’t permit a “state to wholly exclude ‘the Legislature’ from redistricting.”
Amy Coney Barrett, the court’s other conservative justice, has no track record in redistricting cases.
A new round of redistricting is expected to move forward next year, producing a map with more GOP districts, despite the outcome of the high court case in North Carolina.
During last month’s elections, voters flipped the state Supreme Court majority, electing two new Republican justices that give the Republicans a 5-2 edge and make it likely, but not sure, the court would uphold a map with more GOP districts.