In Moore v. Harper the North Carolina Supreme Court concluded that the state legislature engaged in partisan gerrymandering, which violated the North Carolina Constitution, when it redrew the states’ Congressional, state house, and state senate maps. It ordered the legislature to redraw the maps.
The U.S. Supreme Court has agreed to decide whether the U.S. Constitution’s Elections Clause prevents the North Carolina Supreme Court from ordering the North Carolina legislature to redraw the congressional districts.
Following the 2020 census the North Carolina legislature redistricted. At trial a redistricting expert testified that the North Carolina legislature adopted Congressional, state house, and state senate maps which were more favorable to Republicans than at least 99.9% of comparison maps.
The North Carolina Supreme Court agreed with the trial court that the state legislature engaged in partisan gerrymandering which violated numerous provisions of the North Carolina constitution. One of those provisions, at issue in this case, is North Carolina’s “Free elections” clause. It states: “All elections shall be free.”
The U.S. Constitution’s Elections Clause states that the “Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” North Carolina legislators argue that the U.S. Constitution’s Elections Clause “forbids state courts from reviewing a congressional districting plan [that] violates the state’s own constitution.” This argument is known as the “independent state legislature” theory.
The North Carolina Supreme Court rejected this argument stating it is “inconsistent with nearly a century of precedent of the Supreme Court of the United States affirmed as recently as 2015. It is also repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce absurd and dangerous consequences.”
More specifically, the North Carolina Supreme Court noted that in Rucho v. Common Cause (2019), where the U.S. Supreme Court held that partisan gerrymandering cases can’t be brought under the U.S. Constitution, the majority wrote “[p]rovisions in . . . state constitutions can provide standards and guidance for state courts to apply” in a case addressing the justiciability of partisan gerrymandering claims in congressional plans.” Likewise, the North Carolina Supreme Court cited a number of U.S. Supreme Court cases which it opined support the proposition that “state courts may review state laws governing federal elections to determine whether they comply with the state constitution.”
To date a majority of the U.S. Supreme Court hasn’t adopted the “independent state legislature” theory in a case. While this case involves an allegation of partisan gerrymandering which violates a state constitution the “independent state legislature” theory, if adopted, could prevent bringing a claim that any state election law, as applied in a federal election, violates the state constitution.