News Clips

When the court closed the doors of federal courts to claims of partisan gerrymandering in Rucho v. Common Cause in 2019, Chief Justice Roberts, writing for the five most conservative members of the court, said state courts could continue to hear such cases — including in the context of congressional redistricting. “Our conclusion does not condone excessive partisan gerrymandering,” he wrote. “Nor does our conclusion condemn complaints about districting to echo into a void. The states, for example, are actively addressing the issue on a number of fronts.” Seeming to anticipate and reject the independent state legislature theory, he wrote that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”

But the legislature’s opponents, led by Common Cause and Supreme Court litigator Neal Katyal, said there is far more historical precedent in favor of continuing the same set of checks and balances that have always been in place. Katyal also said the Supreme Court has been incredibly hesitant in the past to rule on state constitutional issues. Yet ruling in favor of North Carolina lawmakers in Moore v. Harper, he said, would render state constitutions toothless in every state in the country — at least when it comes to protecting voting rights. “Frankly I’m not sure I’ve ever come across a theory in this court that would invalidate more state constitutional clauses,” he said. He said that ruling in favor of Moore and the other state lawmakers could endanger state constitutional protections across the country, like guarantees of fair elections, or of secrecy at the ballot box. ... Katyal later told the justices there’s good reason for them to be confused. “We can’t tell you what we think (the legislature’s) theory honestly is,” he said. “What they just told you is the opposite of how they started out on page one of their brief.” Several of the court’s more conservative justices pushed back, suggesting that the legislature’s argument wasn’t as flawed as Katyal suggested. Clarence Thomas — the only current justice who endorsed this theory when it was raised unsuccessfully as part of the Bush v. Gore case in 2000 — pressed Katyal with numerous questions about legal precedent.

During the oral arguments, Neal Katyal, an attorney for the Common Cause organization, brought up past remarks that the Supreme Court made in the Bush v. Palm Beach County Canvassing Board case. "And Justice Thomas, it's the same point picking up on Justice Kavanaugh's questioning. Palm Beach, the court said that sovereignty was at its apex when talking about state constitutions and interpretations by state courts," Katyal said. "This Court never second-guessed state interpretations of their own constitutions." In Katyal's remarks, he specifically mentioned page 78 of the Bush v. Palm Beach County Canvassing Board ruling, where the Court said, "It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions."

Chief Justice John Roberts implicitly ruled out support for the theory in a landmark 2019 decision, Rucho v. Common Cause, which stated that partisan gerrymanders were political matters outside the purview of federal courts. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in outlawing partisan maps, he wrote, citing a voter-approved amendment to the Florida Constitution that forbids maps drawn with the intent to favor or disfavor a political party.

Legal battles over partisan and racial gerrymandering “are as North Carolina as barbecue, tobacco fields and hot, humid summer days,” says the executive director of the state Common Cause chapter. North Carolina Common Cause Executive Director Bob Phillips said there has not been an election since 1971 in which the state’s redistricting plans have not been challenged. “In the decade after the 2010 redistricting cycle , every single legislative and congressional election was run on maps that the courts eventually ruled unconstitutional,” he said in a briefing for reporters. “I’m not sure there are many states, if any, that can make that claim.” “It’s almost unfathomable to imagine what will be imposed on North Carolina citizens if our state courts are no longer a place where a bad congressional map can be challenged,” Phillips said.

Kathay Feng from Common Cause, one of the groups leading the respondents, said, “It’s so much bigger than just the conversation about redistricting or gerrymandering.”