A once-fringe far-right legal theory could be tested by a newly conservative-dominated U.S. Supreme Court, raising the threat of state legislatures redistricting and suppressing votes without state judicial review. Originating out of our successful lawsuit against North Carolina’s gerrymandered maps which became a landmark state Supreme Court case, Republican legislators’ appeal to the U.S. Supreme Court could become a Bizarro World, black mirror landmark decision of its own. If the nation’s highest court takes up the case and rules in legislators’ favor, it would have horrible consequences for North Carolina and the entire country.
State House Speaker Tim Moore and Senate President Pro Tempore Phil Berger are petitioning the court to rule that a provision in the U.S. Constitution about legislatures setting “the time, place, and manner” of federal elections means the legislature personally must draw district lines, and no one else gets any say. Under this “independent state legislature theory,” state constitutions which award their own courts the power to review whether a legislative action is constitutional would be rendered meaningless. The power of independent redistricting commissions would be eliminated, and state constitutions, state laws, and state courts would no longer have any check on legislatures’ suddenly supreme power to gerrymander to their hearts’ content.
In centuries of jurisprudence, the court has never read this constitutional provision this way. In fact, the court has previously ruled that state courts do have the power to apply the terms of state constitutions to the actions of their legislatures, including whether the drawing of district lines has been done properly. And they did so just three years ago in another case out of North Carolina, Common Cause v Rucho. Ruling that state courts could apply state constitutions to settle gerrymandering claims but that federal courts could not, the court majority led by Chief Justice John Roberts gave rise to our case and others which have been successful in state courts. Now Republicans want to take away all remaining judicial review and seize all power for themselves for eternity.
A win by the Republican legislative leaders on this matter would effectively eliminate the system of checks and balances between the legislative, executive, and judicial branches at the state level. The systematic abuse of redistricting power, under which the politicians in office now get to pick their own voters without limit, would be a guaranteed constitutional protection.
“The theory is that because the Constitution says that legislatures have some power that they can’t be reviewed by the courts,” said redistricting attorney Marc Elias. “Well, the same Constitution also grants Congress some powers, but it’s never been in doubt that the U.S. Supreme Court can review what’s passed by Congress. The Constitution says ‘state legislature’ and the Constitution says ‘Congress,’ and if you go down this road, all of a sudden, you’re unraveling judicial review.”
Former U.S. Attorney General Eric Holder went even further, warning of the slippery slope such a case could create. “What they’ll say is the Constitution says the decision we’re making only applies to redistricting, but the reality is you put that in place, within a couple of days you’ll see advocates try to broaden its impact. It is dangerous even if you just limit it to redistricting. It’s democracy-threatening.”
Tune in for an update on this and more redistricting matters, as our Director of Strategic Communications Dustin Ingalls and lead attorney Sam Hirsch participate in a national LCV briefing on why redistricting matters for the environmental movement.