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Legislative leaders label N.C. Supreme Court’s redistricting action ‘irreconcilable’ with U.S. Const


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Staff Report

Carolina Journal


Republican leaders of the N.C. General Assembly want the U.S. Supreme Court to limit state courts’ ability to throw out congressional election maps. The request arrived Monday in a new brief filed in the case Moore v. Harper.

The case asks the high court to determine “whether a State’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,’ and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election,” according to the document.

The quoted language comes from Article I, Section 4, Clause 1 of the U.S. Constitution. It’s also known as the Elections Clause.

“The text of the Constitution directly answers the question presented in this case,” wrote legislative leaders’ attorneys. “The Elections Clause provides, in unambiguous language, that the manner of federal elections shall ‘be prescribed in each State by the Legislature thereof.’

Yet in the decision below, the North Carolina Supreme Court invalidated the state legislature’s duly enacted congressional map and decreed that the 2022 election and all upcoming congressional elections in the State were not to be held in the ‘Manner’ ‘prescribed … by the Legislature thereof,’ but rather in the manner prescribed by the state’s judicial branch.

“It is obvious on the face of the Constitution that this result is irreconcilable with that document’s allocation of authority over federal elections,” legislative leaders argued. “As this Court recently explained, ‘[t]he Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.’ Their approach did not assign any role in this policymaking process to state judges, and the decisions by the courts below cannot stand.”

Both a three-judge trial court and the N.C. Supreme Court tossed out congressional election maps drawn by the General Assembly. The trial court substituted its own map, prepared by three outside “special masters,” for 2022 elections.

“If a redistricting process more starkly contrary to the U.S. Constitution’s Elections Clause exists, it is hard to imagine it,” legislators’ attorneys wrote.

Lawmakers distinguished the dispute over congressional maps from an ongoing legal fight in state court over legislative election maps. “[W]hen state legislatures regulate the times, places, and manner of Senate and congressional elections, they are exercising a power governed by the federal Constitution, not a state constitution, so only federal constitutional limits apply,” the brief argued. “No one would suggest that when Congress enacts election regulations under Article I, Section 4, it is somehow subject to state-constitutional limits. The same conclusion must follow for state legislatures acting under the same provision.”

“History confirms what is apparent from the text,” according to legislative leaders. “The actions of the courts below are entirely unprecedented in the Early Republic: no state court appears to have invalidated a state legislature’s congressional map on substantive state-constitutional grounds during this period. Moreover, in the first four decades of practice under the Constitution, 21 out of 24 States refrained from imposing any substantive state-constitutional limits expressly governing federal elections. And when such a limit was proposed in Massachusetts’s 1820 constitutional convention it was voted down after Justice Joseph Story objected that it was ‘plainly a violation of the [federal] [C]onstitution.’”

Legislators’ brief criticizes the N.C. Supreme Court’s legal reasoning. “The North Carolina Supreme Court read abstract and broadly worded commands such as ‘[a]ll elections shall be free’ to somehow authorize the court to impose its own policy determinations and rules about the extent to which partisan considerations may affect redistricting.”

“If the Elections Clause means anything, it must mean at least this: inherently legislative decisions about the manner of federal elections in a State are committed to ‘the Legislature thereof.’”

Lawmakers focus on the text of the U.S. Constitution. “[T]he Constitution carefully sets forth a detailed set of specific rights, specific procedures, and specific allocations of power,” according to the brief. “Here, those carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else. The solution to election regulations thought to be problematic is to persuade one of these entities to change them or, failing that, to amend the Constitution to adopt a different allocation of power — not to ignore the allocation that is clearly written down in the Constitution’s text.”

The legislature’s critics will submit their own briefs in Moore v. Harper by Oct. 19. Court observers expect oral arguments in the case as early as December.

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