Is this about which constitution prevails?

WASHINGTON, D.C. (WGHP) – For nearly three hours they argued, questioned, answered and sometimes even laughed: four attorneys and the nine justices of the United States Supreme Court considered a fundamental argument about who has a voice, if not complete authority, to draw congressional election maps.

The principle is called an “independent state legislature,” and this case is Moore v. Harper et al, named for North Carolina House Speaker Tim Moore (R-Cleveland) and Rebecca Harper, an example of a defendant representing the public through voting rights advocates such as the North Carolina League of Conservation Voters and Common Cause.

The plaintiffs want the court to reinforce that, citing the wording in Article 1 of the U.S. Constitution, only the legislature can determine the “time, place and manner” of elections, which plaintiffs argue to include the responsibility to draw boundaries for congressional districts.

We started on the path to this moment technically more than three years ago, when Harper et al sued about the 2016 electoral maps. Fast forward to last December, and they sued again, and the North Carolina Supreme Court ultimately determined voters’ rights had been violated by the way lawmakers had drawn maps for Congress and the General Assembly following the 2020 census.

The justices employed special masters to review and ultimately to redraw the boundaries used in November’s election.

Attorney David Thompson, representing the state, took up the argument Wednesday that legislators have absolute responsibility for all aspects of federal elections, and the debate that ensued took us back to the Articles of Confederation, James Madison, the English Bill of Rights, Gore v. Bush and even Lollapalooza.

Sometimes during questioning by justices, you can get a hint of how a case might be falling. We know historically that Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanagh have supported this theory, and Chief Justice John Roberts and associates Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson could oppose it. We don’t know where Justice Amy Coney Barrett might fall.

The case drew dozens of amicus briefs by various states and stakeholders, including the chief justices from all 50 states, the Conference of Chief Justices, who in a nonpartisan amicus brief written by counsel urged that the court to reject the argument proffered by the plaintiffs. That brief was mentioned during arguments.

What we heard

The arguments they heard and promulgated during those three hours seemed to be predicated on the reach of the state constitution vs. the federal constitution, the definitions between “textual,” “substantiative” and “procedural,” a variety of precedents on a variety of topics and the world-tilting impact that this decision could make to every state.

Most of Thompson’s push for the court’s approval came based on the precedent of its past rulings and considerations. He invoked the litigation surrounding George W. Bush’s judicial victory in Florida to beat Al Gore in the 2000 presidential election. He mentioned Madison’s theory on gerrymandering in the South Carolina constitution. Someone related the potential impact to the music event Lollapalooza, which brought chuckles.

Thompson also reinforced the political solution that could have remedied much of the foundation of this argument. “The U.S. House of Representatives passed a law outlawing partisan gerrymandering,” he said, referring to the voting rights bill that has languished in the Senate because of the filibuster.

But the questioning of Thompson by Kagan, one of the court’s three liberal justices, appeared to underscore the essence of the argument that permeated the entire session.

“This is a theory with big consequences,” she told Thompson. “If the legislature engages in most extreme forms of gerrymandering, the courts couldn’t’ regulate. If state voter protections … might give legislatures in certifications of elections and how results are calculated. …

“This is a proposal that gets rid of the normal checks and balances on how governmental decisions are made in this country and gets rid of those checks and balances when they matter most.

“Legislatures have their most self-interest. They want to get re-elected. They can affect changes to do so.”

Various questioners thereafter asked Thompson, Neal Katyal of Common Cause, Donald B. Verrilli J. for the defendants and Solicitor General Elizabeth Prelogar of the U.S. Department of Justice for their take on that basic question:

If the U.S. Constitution gives the legislature the right to schedule federal elections, who decides what the legislature is? And if that is – as we know – a state’s constitutions, isn’t that legislature then subject to the normal checks at balances such as a governor’s veto (limited in North Carolina) or a court’s review?

That’s certainly the point reinforced by Kaktyal in his opening remarks after Thompson had finished.

“For 230 years, the Supreme Court has not heard it as you just heard it,” he said. “State legislatures created by state constitutions is not subject to the court’s ruling. … To accept the petitioner’s claim you have to ignore all the years of interpretation.”

Under questioning by Roberts, Prelogar said: “The question [before the court] was time, place and manner. Our view is not that it would transgress from its law. … The legislature’s work has to accede to the state constitution.

“Legislatures have lawmaking power. A state legislature isn’t separated from a state constitution. This went with it, this ordinary checks and balances.”

Kavanaugh and Gorsuch drilled more deeply into Chief Justice William Rehnquist’s concurrence in Bush v. Gore, in which he cited the court’s range in looking at such matters.

Verrilli, under questioning from Barrett, said this is the ultimate legal test that the Supreme Court never has undertaken, never overruling a state court on a matter involving a state constitution. He cautioned about the impact because of how it could be interpreted for various state laws.

“This review is the highest test,” Verrilli said. “We don’t think you should get into statute at all. The blast radius [of a decision for plaintiffs] could get into statute.”

Said Katyal: “Frankly I’m not sure I’ve ever come across a theory in this court that would invalidate more state constitutional clauses.”

Quick reaction

North Carolina Attorney General Josh Stein

No sooner had the hearing ended, just before 1 p.m., than NC Attorney General Josh Stein, who figures to be a potential Democratic candidate for governor, offered his thoughts in a statement issued by his staff:

“Today’s case is among the most consequential affecting our democracy in the history of our nation. The core question is this: who has political power in America? The people or the politicians? My office argues, and the North Carolina Supreme Court agrees, that the people possess all political power in North Carolina. The people of North Carolina must choose their representatives, not the other way around.

“Unfortunately, North Carolina’s legislative leaders have embraced the radical so-called Independent State Legislature theory. They argued this morning that they can draw congressional districts however they wish – even in violation of the will of the people. For them it’s raw power over democracy, politicians over people.

“I believe in the truth of our state Constitution – ‘All political power is vested in and resides in the people …[and] is founded upon their will only.’ With this case, the Supreme Court faces a true test of its commitment to our democracy. I hope and pray that the justices pass that test and do not fail our nation.” 

Robert Orr

Former NC Supreme Court Justice Bob Orr put his quick review on his Twitter feed:

“MooreVHarper takeaways from oral argument today: 3 votes for GA position (Thomas, Alito, and Gorsuch); 3 for Harper position (Jackson, Sotomayor and Kagan); 3 leaning toward Harper position (Kavanaugh, Barrett and Roberts). Opinion will be narrowly written for Harper position.”

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