Opponents of the N.C. General Assembly’s legal arguments about election maps are urging the U.S. Supreme Court to reject an appeal from state legislative leaders.
Briefs filed Friday with the nation’s highest court ask justices not to accept a case tied to North Carolina’s congressional map. State legislative leaders filed paperwork on March 17 asking the Supreme Court to accept the case. That paperwork arrived 10 days after the court declined, by a 6-3 vote, to grant an emergency stay in the case.
Without a stay, N.C. congressional elections are moving forward this year under a court-ordered map.
“Petitioners now ask this Court to exercise its [discretionary] certiorari review to invalidate the map the trial court adopted for the 2022 elections on the ground that state courts are forbidden from protecting individuals’ state constitutional rights by reviewing state laws that touch on federal elections, including the enactment of congressional districts,” according to a brief filed Friday by Common Cause. That left-of-center activist group has challenged election maps drawn by the Republican-led General Assembly for the past decade.
“The way they see it, because the Constitution refers to ‘the Legislature’ of a State setting the time, place, and manner of congressional elections, it precludes state courts from reviewing whether such election-related legislation complies with the State’s own constitution,” the Common Cause brief continued. “Instead, Petitioners would have this Court say that a state legislature has carte blanche in this context — unrestrained by state constitutional limitations and unable to incorporate state courts into the process, even if it passes a statute attempting to do so.”
“As a matter of text, structure, history, precedent, and long-established practice in this country, that is flatly wrong.”
Meanwhile, lawyers working for Democratic N.C. Attorney General Josh Stein’s state Justice Department also asked the Supreme Court to deny Republican legislative leaders’ petition.
“Petitioners’ entire argument hinges on the notion that when the Elections Clause refers to ‘the Legislature,’ it means the State’s representative body. Yet even if Petitioners’ textual argument were correct, they would still lose this case,” according to N.C. Justice Department lawyers. “Here, it was the State’s representative body that prescribed rules for federal elections that expressly provide for state court review. Petitioners cannot overcome this threshold problem.”
“Nor can Petitioners identify any other basis for this Court’s intervention,” the brief continued. “At bottom, they seem to take the position that the Constitution forbids state legislatures from choosing to delegate any of their Elections Clause authority to other actors. Yet no court — state or federal — has ever interpreted the Elections Clause that way.”
State lawmakers argue that N.C. courts violated the federal Elections Clause when they threw out the General Assembly’s proposed map for congressional elections. A three-judge Superior Court panel drew its own map for North Carolina’s 14 U.S. House districts. Voters selected primary candidates Tuesday to compete in those 14 districts this fall.
U.S. Supreme Court Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas signaled support for N.C. legislators’ arguments in a March 7 dissent. Those three justices would have been willing to address the Elections Clause dispute in time to influence the 2022 election cycle.
Justice Brett Kavanaugh did not join his three colleagues at that time. But Kavanaugh agreed in a concurring opinion that the high court should address the issue outside the context of this year’s elections. Kavanaugh even suggested that the N.C. dispute might serve as the basis for Supreme Court review.
Four of the court’s nine justices must agree to take a case. There’s no deadline for the Supreme Court to make a decision about the N.C. case. It’s titled Moore v. Harper.