You’ve got to give the Republicans who control the North Carolina General Assembly this much: They don’t hide what they are up to when they draw the lines for congressional districts.
What has stood in the way of such plans has been North Carolina’s Supreme Court, which is elected and has a 4-3 Democratic majority (though that is about to change because Republicans unseated two of the Democrats in last month’s elections). This year, the court threw out a map that would also have favored Republicans disproportionately in a state that now has 14 House seats. The court enlisted a nonpartisan panel of redistricting experts to draw one that is much fairer, evidenced by the fact that each party won seven House seats in the recent midterm elections.
But the ability of state courts to do so — as New York’s also did this year after the legislature there drew a map that judges ruled unconstitutionally favored Democrats — could soon be a thing of the past. On Wednesday, the U.S. Supreme Court will hear arguments in Moore v. Harper, a challenge to the court-authorized North Carolina maps. Republican legislators are citing a dubious and once-obscure constitutional interpretation known as the “independent state legislature theory,” which some on the right have been pushing in recent years.
Basically, the theory argues for a narrow and literal reading of the Constitution clause that says that times, places and manner of holding House and Senate elections “shall be prescribed in each State by the Legislature thereof.” The long-standing — and reasonable — interpretation is that election procedures put in place by a legislature, as with everything else it does, have to conform to state constitutions, which means they are subject to court review. But the proponents of an “independent” legislature essentially argue that state lawmakers should have an absolute power to run elections however they wish.
“This extreme legal theory that is being proposed in Moore v. Harper would turn the system of checks and balances on its head,” North Carolina Gov. Roy Cooper, a Democrat, told me in an interview. “What they are seeking is unfettered and exclusive control over how federal elections are run in North Carolina. And if this case was to be decided in the Republicans’ favor, then you would be giving state legislatures across the country a ticket to manipulate these federal elections.”
The North Carolina Supreme Court wrote that the theory is “inconsistent with nearly a century of precedent of the Supreme Court of the United States affirmed as recently as 2015. It is also repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce absurd and dangerous consequences.”
The U.S. Supreme Court decided three years ago in another North Carolina case, Rucho v. Common Cause, that challenges to partisan gerrymandering should be addressed in state, not federal, courts. And yet, at least four conservatives on the court — Clarence Thomas, Samuel A. Alito, Neil M. Gorsuch and Brett M. Kavanaugh — have indicated an openness to the theory that would block their ability to do so.
Taken to its logical end, argues the Brennan Center for Justice, the theory would mean that legislators could override state constitutional bans on gerrymandering that exist not only in North Carolina but also in Florida, Ohio and other states. It could also eliminate independent redistricting commissions in states that include Arizona, California and Michigan.
The Brennan Center also raises a “nightmare scenario” — not unlike the scheme attempted by President Donald Trump and his allies after the 2020 election — in which a legislature unhappy with how the presidential election came out in its state could use the theory as a pretext to select an alternative slate of electors.
Ironically, all of this could backfire on Republicans; given the current makeup of legislatures across the country, Democrats might stand to benefit the most if the independent state legislature theory is embraced by the Supreme Court, according to some analyses, including one in a recent Post op-ed by Princeton University’s Sam Wang.
But as Cooper noted: “Regardless of which side is drawing the maps and passing the laws, our democracy depends on checks and balances and other branches of government. The courts and governors should be involved.”
