Supreme Court hears NC case on elections, with big implications for 2024 and beyond

The U.S. Supreme Court’s nine justices sparred with attorneys Wednesday morning in a case out of North Carolina that both sides acknowledge would fundamentally change how election rules are made around the country.

They disagree, however, on whether the changes would be appropriate — or potentially spell the beginning of the end of American democracy, as some critics claim.

The case, called Moore v. Harper, was brought by North Carolina Republican legislative leaders. They want the Supreme Court to ban state-level judges from being able to rule any state laws unconstitutional, if those laws affect federal elections.

During the oral arguments Wednesday, Justice Sonia Sotomayor, one of the court’s liberals, explicitly accused the GOP leaders of trying to “rewrite history” in favor of their argument.

’The single-most important case on American democracy.’ Could it overturn elections?

David Thompson, a lawyer for the legislators, cited one of the Federalist Papers written by Alexander Hamilton, plus discussion from an 1820 convention in Massachusetts, for their argument that the Founding Fathers wanted state legislatures to have “unlimited discretion” over federal elections — including on issues like partisan gerrymandering.

This case began as an appeal of a loss Republican leaders suffered in state court earlier this year, in a gerrymandering lawsuit.

“For the first 140 years of the republic there was not a single state court” that struck down a redistricting plan for congressional districts as unconstitutional, Thompson said.

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.

NC elections case goes to the Supreme Court. How we got here, and what’s next

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.

The argument in favor of keeping state courts empowered to review election laws was backed up by the federal government, too.

President Joe Biden’s solicitor general, Elizabeth Prelogar, told the Supreme Court justices not to give state legislators the green light to pass election laws that violate their state constitutions by making those laws immune from judicial review.

“A law that violates the constitution is no valid law,” she said Wednesday, adding that ruling for North Carolina lawmakers would have “disastrous consequences.”

The state of North Carolina also opposed the arguments its GOP lawmakers made, with Democratic Attorney General Josh Stein in attendance Wednesday. He didn’t personally argue the state’s case to the court, but he told McClatchy afterwards that the legislature is seeking “an incredibly audacious power grab” in the form of a Supreme Court ruling.

“They want to take from the people the power to choose who represents them in Congress,” he said. “We have a separation of powers and checks and balances to ensure that one branch of government doesn’t take over all of government, and these folks are arguing that our state Supreme Court has absolutely no role to play in interpreting our own state constitution. It is absolutely radical.”

How we got here

Republicans in North Carolina have lost a number of high-profile lawsuits over election laws in the last decade, with their actions being ruled unconstitutional for racial discrimination and other causes.

A win for them in this case likely wouldn’t stop federal courts from being able to hear political lawsuits. But it would severely limit the checks and balances at the state court level — which in recent years has heard cases on voter ID, gerrymandering and other voting rights issues.

N.C House Speaker Tim Moore, one namesake of Moore v. Harper, sat in the back of the Supreme Court chambers on Wednesday. Afterward, just outside the courthouse, he said he was impressed with the arguments from all sides in the case.

“I think all the attorneys did a great job, and I’m really impressed with how all the judges, regardless of their political views, really seemed to give a lot of thought to it,” he said.

Moore said he didn’t take lightly asking the Supreme Court to weigh in on the case.

“We felt like the state Supreme Court was just so far off the mark and just — some use the word, lawless, and it’s a reasonably descriptive term,” he said.

Any ruling potentially stripping power away from state courts on election law issues would apply to every state in the country, not just North Carolina.

Opponents say there’s no valid reason for the Supreme Court to adopt the legislature’s controversial legal theory, called the “independent state legislature” doctrine, to undo the system of checks and balances that has existed for centuries and give state legislators more power.

They fear it would make gerrymandering worse than it already is, and cause chaos and confusion if states ended up having different sets of rules for races on the same ballot, depending on if the race was for a federal or local election.

On behalf of the legislature Wednesday, Thompson said states have always had the ability to set up different rules for state and federal elections, yet never have.

And as for courts’ ability to clamp down on gerrymandering, he said, the legislature views the state court’s gerrymandering ruling that led to this case as indefensible — and a reason for the U.S. Supreme Court to step in now and stop similar rulings from ever happening again.

“It was not grounded in the text, it was not grounded in history, and it was not grounded in precedent,” he said.

But the case isn’t necessarily just about gerrymandering and elections administration.

Some, but not all, critics also say a win for North Carolina would allow state legislatures across the country to ignore the popular vote in future presidential elections, and give their Electoral College votes to whichever candidate belongs to the political party that controls the state legislature, regardless of how people voted.

Such a plan was part of Republican President Donald Trump’s efforts to stay in power despite losing the 2020 election, and while it didn’t work then, some say a Supreme Court ruling in favor of expanded power for state lawmakers now could pave the way for a similar plan to actually work in 2024 or beyond.

What the justices said

Justice Samuel Alito, a conservative who has previously been receptive to the legislature’s arguments in this case, pushed back on Katyal repeatedly, saying Congress could always step in to protect people’s rights if it wanted.

Alito also acknowledged media coverage that has focused on the potential dangers to democracy this case poses. But he suggested that perhaps politically motivated state supreme court justices pose a danger, too — which a ruling in favor of North Carolina could address by taking away those justices’ power to rule on laws governing federal elections.

A key argument Republican lawmakers have made in this case is that the N.C. Supreme Court overstepped its bounds by throwing out the legislature’s maps as unconstitutional gerrymandering based on Section 10 of the N.C. Constitution, which is only five words long: “All elections shall be free.”

That ruling against the Republican-led legislature came down purely along partisan lines at the Democratic-majority state Supreme Court, The N&O has previously reported.

However, the idea that state lawmakers shouldn’t have to follow their state constitutions didn’t sit well with Justice Ketanji Brown Jackson, one of the court’s three liberal justices.

“In order for us to have a thing called ‘the legislature’ we have to look at the state constitution to figure out where that entity’s powers are, how they can be exercised,” she said.

One of the court’s more conservative justices, Amy Coney Barrett, expressed some confusion over the legislature’s argument several times Wednesday, saying it didn’t seem to square with past precedent.

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.

“I’ve been waiting 30 years to ask him a question,” Thomas, who is famously quiet on the bench, joked at the outset.

The N&O has previously reported that four of the court’s more conservative justices — Neil Gorsuch and Brett Kavanaugh, in addition to Thomas and Alito — have indicated some level of support for the legislature’s argument.

If they all vote in favor of North Carolina lawmakers, and the three liberals all side against the legislature, then the swing votes will come down to Barrett and Chief Justice John Roberts to decide how the court will rule.

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