Bloomberg Law
April 28, 2023, 8:43 PM

Supreme Court Election Case in Doubt With State Court Ruling (1)

Greg Stohr
Greg Stohr
Bloomberg News

The North Carolina Supreme Court backed a Republican-drawn congressional map in a ruling that could scuttle a major US Supreme Court elections case.

The state court on Friday overruled its 2022 decision that had said the districts were so partisan they violated the North Carolina Constitution. The US Supreme Court has been reviewing that ruling in a case centering on which parts of state governments have authority to shape federal election rules.

The litigation took an unusual twist when Republicans seized control of the North Carolina Supreme Court in last year’s election. The state court said it would then reconsider at least part of the dispute, raising questions about the US Supreme Court’s jurisdiction.

The top US court in March asked the litigants to file briefs discussing the potential impact of the North Carolina court’s decision to revisit the dispute. That request drew mixed responses, with the Biden administration suggesting the high court drop the case but other litigants saying the justices should rule.

The Supreme Court case centers on the “independent state legislature theory,” which would oust state judges and other officials from longstanding roles in shaping the rules for federal elections.

Mark Elias, one of the lawyers challenging the GOP map, tweeted that the North Carolina ruling “will almost certainly mean SCOTUS will not decide the controversial ISL theory this term.” Elias is the founding partner at Elias Law Group, which advocates on behalf of Democratic causes.

But Neal Katyal, who argued against the map on behalf of Common Cause in December, said he believes the high court still has jurisdiction.

“It’s a pretty dangerous thing to allow state supreme courts to essentially test drive their opinion and go through oral argument at the US Supreme Court and then pull it back,” Katyal, a partner at Hogan Lovells, said in an interview for Bloomberg’s “Cases and Controversies” podcast.

Republican Push

Republicans are pushing the independent state legislature theory, which could affect voter eligibility and mail-in ballot requirements, as well as congressional district lines. They say the approach would ensure that elected representatives, not judges or administrators, are setting out the voting rules.

Critics say the independent state legislature theory would have dire implications for democracy, depriving voters of crucial layers of protection, wreaking havoc on election administration and changing a centuries-old constitutional understanding.

The Supreme Court arguments in December suggested even some of the conservative justices were wary of the theory, at least in its most sweeping form.

The North Carolina Supreme Court’s rehearing focused primarily on a follow-up part of the case — a ruling that had imposed a judge-drawn map to replace the legislature’s lines. But Friday’s decision went further, overturning a December 2022 ruling that said the state constitution puts limits on partisan gerrymandering.

The 5-2 decision, written by Chief Justice Paul Newby, said that “there is no judicially manageable standard by which to adjudicate partisan gerrymandering claims.”

Dissenting Justice Anita Earls blasted the majority for “its shameful manipulation of fundamental principles of our democracy and the rule of law.”

The US Supreme Court case is Moore v. Harper, 21-1271.

(Updates with reaction from Elias, Katyal starting in sixth paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editor responsible for this story:
Elizabeth Wasserman at

© 2023 Bloomberg L.P. All rights reserved. Used with permission.

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