SCOTUS to hear arguments in NC case that would give state legislatures more power over elections

Michael Perchick Image
Monday, December 5, 2022
SCOTUS to hear arguments in NC elections case
The Supreme Court is about to confront a new elections case that could dramatically alter voting in 2024 and beyond.

The US Supreme Court is set to hear oral arguments Wednesday in Moore v. Harper, a legal challenge which could impact future elections in North Carolina.

"It's really about how the power to regulate elections is going to be construed," said Jeanette Doran, a former Republican candidate for the North Carolina Supreme Court and the President and General Counsel for the North Carolina Institute for Constitutional Law.

"It involves a challenge to the ability of the State Supreme Court to scrutinize decisions made by the State Legislature regarding redistricting and other matters relating to the election of federal officials," said Irving Joyner, a law professor at NC Central.

Earlier this year, the State Supreme Court struck down voting maps drawn by the Republican-controlled legislature, stating they were unconstitutional due to partisan gerrymandering.

"(The proposed maps) created Congressional districts that would have been 11-3 Republican, or 10-4 at best," said Joyner.

Eventually, a special master team of outside experts eventually drew maps which were in place for this most recent election, which ended in a 7-7 Congressional split.

However, House Speaker Tim Moore, representing the plaintiffs in the case, believes the State Supreme Court overstepped its boundaries. They are pointing to the Elections Clause in the US Constitution, which states "The Time, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

"What the legislators have asked the US Supreme Court to do is basically tell the state courts is 'you need to stay in your lane. You don't get to legislate. That's a legislative body function.' So the state courts would still be able to do a certain amount of review, to evaluate whether elections laws are constitutional," Doran said.

The potential impact is based off if, and to what degree, the US Supreme Court agrees with the plaintiffs in the suit.

"There are limits to what even if this was interpreted very broadly by the (U.S.) Supreme Court that the State Legislatures have almost exclusive power over election laws, it doesn't mean that they could overturn everything. But it would give them a lot more power in terms of the kind of things we've gotten used to in North Carolina. Redistricting cases, voter ID. The state courts have invalidated voter ID (requirements) in the past, and this would not presumably allow that to happen. The length of early voting, sometimes the courts have been involved in that in terms of having the early voting period longer. So there are a lot of things that we've seen over the past twenty years that the courts have been involved in that we might not see them involved in in the future," said McLennan.

Dr. Erin Moore, Executive Director of the Center for Racial and Social Justice at Shaw University, supports the use of independent, bipartisan commissions to draw voting maps, noting both major political parties have engaged in gerrymandering.

"It is not an issue of Democrat vs. Republican. It's an issue of what's fair in this country," Moore said.

Critics of the lawsuit are concerned if the court rules in favor of plaintiffs, it could disenfranchise voters.

"It will decide who it is that they can vote for, and whether a political party can entrench itself into power," added Joyner.

"It's an issue of fairness, and it's an issue of democracy. And I don't think that we need to be looking for more ways to suppress people's votes and participation in the political process," said Moore.

But Doran disagrees, arguing limiting the court's ability to step in on certain electoral issues could spur turnout.

"While in North Carolina, we elect our judges and justices, they serve eight year terms. Legislators serve two year terms, which makes them more immediately accountable to voters," Doran said.

There are still limits to what the State Legislature can enact; for example, redistricting based off race is still illegal under the federal Voting Rights Act of 1965.

In a statement, NCGOP Chair Michael Whatley wrote of the suit:

"Despite the Democrats' spin, this case boils down to whether or not the legislature has ultimate authority to draw election maps. The Constitution answers that question clearly, and we look forward to the Supreme Court putting an end to this era of activist progressive judges imposing their own political will from the bench."

NC Democratic Party Chair Bobbie Richardson wrote:

"Moore v. Harper is not only a radical misinterpretation of our U.S. constitution, but also another brazen attempt by North Carolina Republicans to erode our fragile democracy and manipulate elections for political gain. North Carolina Democrats will never stop fighting to elect leaders who will protect our democracy."

Tuesday morning, respondents to the lawsuit are expected to rally in Bicentennial Plaza in downtown Raleigh, before they head off to Washington, D.C. ahead of Wednesday's hearing.

The US Supreme Court is expected to hand down its decision in May or June 2023.


Weighing the impact of new GOP majority on NC Supreme Court

US Supreme Court won't hear NC Republicans' redistricting appeal