My New One at Slate on North Carolina’s Attempt to Get the Supreme Court to Allow It to Return to Partisan Gerrymandering of Congressional Districts

I have written this piece for Slate. It begins:

In a late Friday afternoon filing as war raged in Ukraine and as President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to replace Justice Stephen Breyer on the U.S. Supreme Court, North Carolina Republicans dropped their own bombshell: a legal filing in the Supreme Court that if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. There are strong arguments Republicans should lose this case, but don’t count them out before a polarized and politicized Supreme Court.

A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court shut the federal courthouse door to partisan gerrymandering claims—claims that political parties drawing maps for electing members of Congress or state legislative bodies manipulated those maps purely for partisan gain. The Rucho court majority opinion by Chief Justice Roberts explained that there were other paths for reining in this conduct, including Congress passing legislation (as the Freedom to Vote Act would have done), the creation of independent commissions, and state courts. Indeed, the court noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing nefarious redistricting practices.


In a late Friday afternoon filing as war raged in Ukraine and as President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to replace Justice Stephen Breyer on the U.S. Supreme Court, North Carolina Republicans dropped their own bombshell: a legal filing in the Supreme Court that if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. There are strong arguments Republicans should lose this case, but don’t count them out before a polarized and politicized Supreme Court.

A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court shut the federal courthouse door to partisan gerrymandering claims—claims that political parties drawing maps for electing members of Congress or state legislative bodies manipulated those maps purely for partisan gain. The Rucho court majority opinion by Chief Justice Roberts explained that there were other paths for reining in this conduct, including Congress passing legislation (as the Freedom to Vote Act would have done), the creation of independent commissions, and state courts. Indeed, the court noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing nefarious redistricting practices.

And that’s exactly what happened in North Carolina. The state Supreme Court recently held that the North Carolina Republican-controlled legislature’s gerrymandering of Congressional and other districts was a partisan gerrymander grossly favoring Republicans violating the state constitution’s provisions guaranteeing free elections. This ruling was going to lead to a much fairer map in a state that is mostly evenly divided between Democrats and Republicans.

Now the Republican-dominated general assembly has struck back raising what’s come to be known as the “independent state legislature” theory. This move was something I feared would happen weeks ago as Republicans were running out of options. They’ve argued in a new filing before the Supreme Court that the North Carolina Supreme Court does not have the power even in reliance on the state Constitution and despite Rucho to rein in partisan gerrymandering of congressional districts when done by a state legislature…..

Now there are some good reasons to believe that the Supreme Court won’t bite in this case. First, this ruling would not only be in tension with Rucho’s recognition of state courts applying state constitutions as a means of policing partisan gerrymandering, which five conservative jurists signed onto just three years ago. It is also in tension with a 2015 case in which the Supreme Court upheld the right of the people acting through voter initiatives to take the power to draw congressional districts out of the hands of legislatures and put it in the hands of an independent commission. (Chief Justice Roberts wrote a bitter dissent for four justices in that case, and he could be itching to overturn it now that some of the justices in the majority in that case are no longer on the court).

An even stronger reason for believing that the North Carolina argument is weak in this case is that it was the state legislature itself that proposed the provision in the 1970 constitution guaranteeing these voting rights for North Carolina voters, which have now been interpreted by the state supreme court to ban partisan gerrymandering. As North Carolina elections guru Gerry Cohen explained, “Unlike the North Carolina Constitutions of 1776 and 1868 which were promulgated by independent conventions, the 1970 state constitution was enacted by the General Assembly.” How can the state supreme court have usurped the legislature’s power when the legislature itself brought this provision into the state Constitution, knowing full well that the state Constitution is interpreted by the state supreme court?

The independent state legislature theory is also wrong on the merits. As leading constitutional scholars Vikram Amar and Akhil Amar explain in a forthcoming paper, claims of unfettered power of state legislatures in federal elections are:

as an originalist matter, not just lawless—that is, not grounded in the law—but actually law-defying. They stand lawful federalism on its head. The theory invokes constitutional provisions designed to protect states against federal interference (including interference from federal courts) and instead uses these provisions to disrespect both the wishes of the state peoples who create, empower, and limit their legislatures, and also the wishes of the elected legislatures themselves. The theory gives near carte blanche to federal judges, when the key point of Article II’s election language (and the companion language of Article I) was to empower states.

And there’s yet another reason North Carolina should lose. In recent years the Supreme Court has relentlessly applied something I’ve dubbed the Purcell Principle: the idea that federal courts should not interfere with election processes when they are already underway because doing so could cause voter and election administrator confusion. Well stopping things now in North Carolina would cause exactly the same thing. As Cohen tells me: “Candidate filing under the NC court ordered plan started yesterday. Two of the 7 days of candidate filing has been completed. The state board of elections has updated all 8 million voter records with the new districts. Absentee ballots are to go out March 28 under the court plan for the May 17 primary.” As recently as this month, Brett Kavanaugh cited the Purcell Principle to block a state court’s ruling in another gerrymandering case based on a similar timeline and under much more dubious circumstances.

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