Gerrymander Gazette: The Next Threat – Special Explainer Edition

July 1, 2022

Yesterday, we learned that Common Cause and our allies in North Carolina will again be at the center of the next big democracy fight in the U.S. Supreme Court. The Court announced that it will hear Moore v. Harper, an appeal of our successful lawsuit striking down the North Carolina legislature’s partisan and racial gerrymander of the state’s congressional map. This case, which the Court will hear in the 2022 fall term, could have significant implications for the protection of voting rights. Let’s dig into what’s at stake.

What is this case about?

In a consolidated case that included several different plaintiff groups, the North Carolina Supreme Court struck down North Carolina’s congressional map, which legislators drew following the 2020 census. The state Supreme Court held that the General Assembly engaged in partisan gerrymandering in drawing the map and that partisan manipulation of voting districts violates the North Carolina Constitution. In response, the General Assembly defendants appealed this decision to the U.S. Supreme Court and the Court agreed to hear that appeal.

What is the basis for the General Assembly’s appeal?

The General Assembly’s appeal makes a radical argument based on the so-called “independent state legislature” theory. The Elections Clause of the U.S. Constitution states the following: “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.”

Under the General Assembly’s reading of the Elections Clause, the word “Legislature” is to be taken literally to an absurd degree by allowing legislators to make whatever rules they would like concerning federal elections with no oversight from state courts applying state law. If the U.S. Supreme Court adopts this legal argument, it would neuter state courts and render state constitutional protections null and void when it comes to federal elections.

Is the potential damage limited to just redistricting cases?

No. If the U.S. Supreme Court adopts the defendant General Assembly’s shoddy logic, the damage could extend to a variety of voting procedures. State courts would be powerless to protect voting rights in federal elections as they relate to voter registration, vote by mail, limitations on voting hours or locations, or even the secret ballot.

Does the North Carolina General Assembly’s legal argument have any basis in law, history, precedent, or logic?

No. This is a plain and simple power grab designed to remove the refs from the game. As Common Cause detailed in our brief opposing the defendants’ cert petition, the authors of the U.S. Constitution were well aware of the existence of state courts and the role they played in interpreting state constitutions when drafting the Elections Clause. If they had wanted to grant legislatures the sole and unreviewable authority to administer federal elections, they could have used language doing so. For example, the Framers gave the U.S. Senate the “sole power to try all Impeachments.” The Elections Clause gives no such authority to state legislatures.

A century of Supreme Court precedent has recognized the obvious fact that legislatures are – and should be – bound by the state constitutions that created them and by courts that are responsible for interpreting the law. The Supreme Court stated in Ohio ex rel. Davis v. Hildebrant (1916) that the Elections Clause’s “Legislature” is “the legislative power” of a state, which contains “the state Constitution and laws.” In Smiley v. Holm (1932), the Court added that, when a state legislature is exercising this legislative power, it is “making law[ ]” and must act “in accordance with the method which the state has prescribed for legislative enactments,” including the state constitution.

More recently, the Court declared in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) that “[n]othing in th[e Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” In that case, legislators tried to use a version of their radical theory to kill independent citizen redistricting commissions and keep the power to draw congressional districts permanently in the hands of self-interested politicians. Less than three years ago, in Rucho v. Common Cause (2019), the Court held that “state constitutions can provide standards and guidance for state courts to apply [in districting cases].”

So now what?

Between now and the fall, Common Cause and our attorneys at Southern Coalition for Social Justice and Hogan Lovells will work closely with the plaintiffs and attorneys in the other consolidated cases to coordinate our arguments and gather the most effective group of partners to file amicus briefs. Our coordinated effort will demonstrate how dangerous and absurd the legislators’ undemocratic arguments are. Keep up on the latest developments in the case at Common Cause North Carolina’s website.


This newsletter has been produced by Common Cause and compiled by Dan Vicuna. Subscribe to the Gerrymander Gazette here. For more information or to pass along news, contact Dan Vicuna.

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