North Carolina’s state Supreme Court, with two new Justices making the difference, ruled on Friday that courts in the state have no power to strike down partisan “gerrymanders” – the two-centuries-old practice of giving one political party an advantage in elections.
While a major setback for Democrats in the state, the ruling has national significance because it may prevent the U.S. Supreme Court – at least for many months – from deciding a historic voting rights issue that it is even now studying.
That issue is whether, in drawing voting districts for elections to the U.S. House of Representatives, state legislatures cannot be second-guessed by state courts, no matter how partisan an impact results from the maps they draw.
The so-called “independent state legislature theory” – which also has implications for states’ role in the election of the President — is now awaiting a decision in the Supreme Court case, Moore v. Harper. The Court on December 7 heard an appeal based on an earlier version of the gerrymander controversy in North Carolina.
Under review by the Justices is a ruling last year by North Carolina’s highest court, declaring that partisan gerrymanders violate several clauses of that state’s constitution. That 2022 ruling came on a 4-to-3 vote, when Democrats serving on the court had that majority.
However, in last November’s elections, two new Republicans won seats on the state court, giving the GOP a 5-to-2 majority. That court voted in February to reconsider the 2022 ruling, and the new partisan lineup determined the final vote in Friday’s decision. The decision wiped out the earlier ruling and that outcome could mean that there is nothing left for the U.S. Supreme Court to decide in that case.
Friday’s decision was based on how the North Carolina court interpreted the state constitution. That document, it said, assigns to the legislatures the task of drawing election districts, and provides no role in that process for state courts or for the state governor. It mentioned the U.S. Constitution, but only in passing and that did not appear to be necessary to the result.
It has long been true that the U.S. Supreme Court accepts how state courts interpret their own state constitutions, unless those interpretations run afoul of the U.S. Constitution. By grounding its new ruling in the North Carolina constitution, the state court may have insulated its decision from a new appeal to the Justices in Washington, in addition to scuttling the existing Moore case.
Partisan gerrymandering – a part of the American political landscape since 1812 –had been challenged for decades in the U.S. Supreme Court, relying on various theories under the U.S. Constitution, but the Court had never found a way to define a test of its validity.
However, in a historic ruling in 2019 (in another case from North Carolina, Rucho v. Common Cause), the Court ruled 5-to-4 that gerrymandering for partisan reasons is a political not a legal question, and there is nothing in the Constitution that forbids it.
That meant, of course, that if partisan drafting of election districts was to be challenged for legal reasons, that could only come under state constitutions.
The “independent state legislature theory,” an idea with deep roots in U.S. history but never validated by the Supreme Court, has had a new revival in Republican-dominated state legislatures, seeking to prevent state courts from interfering with partisan map-drawing.
It was the Republican leadership in the North Carolina legislature that pressed the theory both in state court and in their Supreme Court appeal in Moore v. Harper.
The North Carolina controversy has involved claims of partisanship in drawing voting districts for the state’s U.S. House of Representatives seats, as well as seats in both chambers of the state legislature.
The effect of partisan gerrymandering by the North Carolina legislature was clearly illustrated in the ongoing controversy over its House of Representative seats.
When the state had 13 House seats, the GOP-controlled legislature drew maps resulting in ten Republicans winning and three Democrats, even though the two parties’ statewide total votes have been about even. That is what has made North Carolina a “battleground” state in modern elections.
After the 2020 census, North Carolina gained a 14th House seat. As a result of the court battle over partisan gerrymandering, the 2022 elections wound up with the House delegation split evenly –seven Republicans, seven Democrats. Those districts were drawn by a state court, but only for use in 2022.
As a result of Friday’s new decision in the state Supreme Court, the legislature now has permission to draw new House districts with no check on the partisan outcomes the legislature seeks to bring about.
In Washington, the Justices have several options once they are notified of the new decision in state court. They could ask lawyers for a new round of legal briefs on the impact of that ruling on what the Justices were pondering (or lawyers could seek to file new briefs without being asked); they could decide on their own whether they still have authority to decide the pending case; they could put off doing anything with that case until next term, perhaps with new briefs and a new hearing.
In any event, it appears now that the independent state legislature theory is not going to be decided in a final way during the Justices’ current term, which is scheduled to finish by late June or early July. That very likely would mean that it would come up in 2024 – in the midst of a new national political campaign.
The Justices do have another option if the Moore case does collapse entirely: granting review – for decision next year – of a new case testing the same theory about state legislatures power over election districts. In fact, they have been holding, without action, another case that raises that theory: an Ohio case, Huffman v. Neiman.
In the current Congress, the Ohio GOP has 10 House seats and the Democrats five. Although the two parties’ shares of statewide votes in 2022 were 56.4 percent Republican, 43.6 percent Democratic, the GOP wound up after map-drawing with twice as many House seats (66.7 percent to 33.3 percent).
Ohio’s Supreme Court struck down that districting plan as a partisan gerrymander, relying on the state constitution. State officials appealed to the Supreme Court, and the Justices considered the case briefly in January, but have done nothing since – a sign that they were awaiting their decision in the North Carolina dispute.