The Supreme Court looks increasingly likely to sidestep a clash over an election law that has weighty stakes for gerrymandering and setting election rules.
The justices were headed toward a decision by June in the closely watched appeal from North Carolina Republican lawmakers, who are advancing a sweeping legal theory that would hand near-total authority to state legislatures in regulating federal elections.
But legal experts say a recent move by the justices on the country’s high court to question whether they have the authority to even hear the state case means they may be considering holding off on resolving the matter this term.
Should the majority-conservative U.S. Supreme Court side with the GOP lawmakers, it would allow the theory that claims the U.S. Constitution gives states sweeping authority over how to run federal elections to apply nationwide.
Opponents of the theory contended that adopting it would leave legislators’ power over elections unchecked, while those who support it argue that state courts shouldn’t be able to supercede the authority of state legislators.
The justices agreed to take the case after attorneys for the North Carolina GOP lawmakers argued that resolving how to interpret the U.S. Constitution’s Elections Clause was imperative ahead of the next election cycles and shouldn’t wait for the remainder of the case to proceed in state court, contending a similar case would otherwise soon come about.
“Waiting for that dispute to reach this Court would do nothing but waste time,” they wrote. “The Elections Clause issues will be the same, but likely in an emergency posture again, without time for this Court’s merits review.”
The justices on Dec. 7 heard oral argument in Republicans’ appeal of the North Carolina Supreme Court’s decision, which struck down the state’s GOP-drawn congressional map. Less than four weeks after the argument, however, Republicans regained control of the state’s top court.
In early February, the newly-installed 5-2 conservative majority in the state court voted to give the Republican lawmakers a second shot in their case. But without being alerted, the U.S. Supreme Court justices in an unsigned order dated March 2 have now asked for an additional briefing on whether they still have jurisdiction to move ahead.
David Thompson, who argued on behalf of the Republican lawmakers, in an email wrote that he’s confident the jurisdiction remains with the high court.
For the high court to move forward, legal experts suggest the justices would rely on an exception that, despite having thorny requirements, seeks to preserve Supreme Court review of federal questions even when additional state court proceedings remain.
The justices during December’s oral argument appeared to consider a middle path in the dispute without fully embracing the theory. But the jurisdictional concerns present a genuine legal question.
“Jurisdiction is something the court takes very seriously,” said Derek Muller, an election law expert and professor at the University of Iowa College of Law. “It’s not a proxy for the merits. I would say jurisdiction is a hard-and-fast rule that they’re going to be looking at.”
The appeal that reached the U.S. Supreme Court arose after the North Carolina Supreme Court’s then-Democratic majority struck down the state’s GOP-designed congressional map as a partisan gerrymander. It ruled the map was a violation of the state constitution.
The ruling split the case into two tracks: state courts began overseeing the drawing of new maps, and meanwhile, the U.S. Supreme Court justices agreed to consider if the state court had authority for its ruling.
The parties had battled in court filings over whether the North Carolina Supreme Court’s decision could be considered as such for purposes of the second track, although court proceedings to design new maps still remained ahead.
The parties had battled in court filings over whether the U.S. Supreme Court could take up the second track as state court proceedings to design the new maps still remained ahead.
“Ongoing proceedings in the North Carolina Supreme Court could complicate this Court’s review,” the North Carolina Department of Justice, which opposes the lawmakers’ argument, wrote in court filings.
Those debates largely fizzled once the justices agreed to take up the appeal. When the high court appeared headed for a high-stakes ruling on the merits, voting rights groups, more than 30 state attorneys general and various politicians filed amicus briefs on both sides.
“The agreement of the North Carolina Supreme Court to rehear the case doesn’t change the Supreme Court’s jurisdiction,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law.
“But if the North Carolina Supreme Court were to overrule the earlier decision, and so that the earlier decision no longer stands, then the Supreme Court could say this controversy is moot and wouldn’t have jurisdiction,” continued Chemerinsky, who suggested the justices will likely hold the case until the rehearing in North Carolina concludes.
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This story was originally published March 7, 2023, 6:00 AM.