Supreme Court to hear redistricting suit with deep implications for federal elections

John Fritze
USA TODAY

WASHINGTON – The Supreme Court on Thursday agreed to hear arguments in a North Carolina redistricting challenge, wading into a simmering legal battle that could have profound implications for how states manage presidential and congressional elections.

The appeal from North Carolina Republican lawmakers could significantly weaken the ability of state courts nationwide to review laws for federal elections at a time when critics say the Supreme Court has become increasingly politicized.  

On the surface, the case centers on North Carolina's recently redrawn congressional districts – a map that state’s top court ruled this year was a partisan gerrymander that violated the state constitution. But Republicans are challenging not only whether the North Carolina court got its decision right but also whether state courts have any role to play in reviewing laws passed by legislatures that deal with federal elections.

The decision to hear arguments in the election case adds another major controversy to next term's docket, which already features a challenge to the affirmative action policies at Harvard University and the University of North Carolina as well as a lawsuit by a website developer who wants to decline to provide her services for same-sex marriages.   

The case will likely be argued in the fall and decided next year – far too late for the decision to impact this year's midterms. But the decision will almost certainly land before the 2024 presidential election.  

That could affect a bevy of election-related cases about voting regulations as well as congressional maps. After the 2020 election, President Donald Trump and his allies filed several lawsuits in state courts about the handling of absentee ballots that were eventually appealed to the U.S. Supreme Court.

The case made its way to the nine justices at a time when the Supreme Court's role in 2020 presidential election has repeatedly come up at a series of hearings on Capitol Hill investigating the attack on the U.S. Capitol on Jan. 6, 2021. Those hearings have highlighted how Trump's allies hoped the Supreme Court would reverse Trump's election loss, which the conservative high court repeatedly declined to do

The committee's investigation has also unearthed messages between Virginia "Ginni" Thomas, the wife of Associate Justice Clarence Thomas, and aides and attorneys close to the former president as he attempted to circumvent the election. That has increased calls for Justice Thomas to recuse himself from any cases involving the Jan. 6 attack.   

A security fence is seen in front of the Supreme Court in Washington, D.C., on June 15, 2022.

The Republican state lawmakers who filed the North Carolina lawsuit are relying on what’s known as the independent state legislature doctrine, based in the U.S. Constitution’s election clause. That section mandates that the time, place and manner of elections for federal officers "shall be prescribed in each state by the legislature." The clause, they note, doesn't say anything about state courts having the authority to check that power.

Four conservative justices on the Supreme Court have indicated they are at least willing to consider the idea, which critics dismiss as a "fringe" theory.  

"We will have to resolve this question sooner or later, and the sooner we do so, the better,” Associate Justice Samuel Alito wrote earlier this year as he dissented from the court’s decision against the North Carolina lawmakers when they sought an emergency ruling from the Supreme Court to temporarily block the state court's decision. 

Alito was joined by Associate Justice Neil Gorsuch and Thomas.

Associate Justice Brett Kavanaugh said he agreed with the court’s decision to deny North Carolina’s emergency request but said he supported debating the merits of the lawmakers' position on the court’s regular docket after hearing oral argument.

"Both sides have advanced serious arguments," Kavanaugh wrote in March. "The issue is almost certain to keep arising until the court definitively resolves it."

Opponents balk at the idea that state courts cannot review election laws approved by the legislature, just like any other law. A brief on behalf of the voters and groups who filed the initial lawsuit asserted that the GOP state lawmakers are not challenging other elements of the state constitution that would seem to fly in the face of the independent state legislature doctrine, such as the governor's power to veto election legislation.

"Under bedrock principles of federalism, it is state supreme courts – not this court – that construe their own state constitutions," the groups wrote.

Besides, they argue, the North Carolina legislature had previously passed a law allowing state courts to review redistricting plans. Even if the U.S. Constitution gives legislatures exclusive power over elections, they assert, nothing in the founding document prohibits state lawmakers from voluntarily inviting state courts to review their work. 

North Carolina's legislature approved the congressional map on Nov. 4, 2021. Three months later, the state's supreme court struck down the maps, which would have given Republicans control of as many as three additional House districts. A North Carolina court appointed three experts to draw a new map, which it later adopted. Republicans asked the state supreme court to block that map, but the request was denied.