By William & Mary Student Contributor
Can legislatures promulgate any election rule or redistricting plan, free of any state institutional checks and balances, subject only to intervention by Congress or the U.S. Supreme Court? That question will be answered by the Supreme Court this term in Moore v. Harper (“Moore”). The argument that the plaintiffs seek to advance is based on the independent state legislature theory (ISL). Moore, who is Speaker of the North Carolina House of Representatives, and his co-plaintiffs argue that the Elections Clause of Article 1, Section 4 of the U.S. Constitution allocates the authority to draw congressional districts exclusively to state legislatures. Therefore, according to ISL, the North Carolina Supreme Court cannot exercise any power regarding the time, place, and manner of elections. Further ISL would deem the North Carolina Supreme Court’s decision in Harper v. Hall (“Harper”) unconstitutional, because the legislature’s redistricting maps violated North Carolina’s constitutional guarantee to equal voting power.
Similar to state supreme courts across the nation, the North Carolina Supreme Court had ruled on redistricting prior to 2022. In Harper, the North Carolina Supreme Court principally cited to two cases, where the court held that those maps infringed upon the rights of North Carolinians. Stated bluntly, the court declared, “Our state constitution provides greater protection of voting rights than the federal Constitution,” citing 2009 case Blankenship v. Bartlett and 2002 case Stephenson v. Bartlett. To better understand the role that the North Carolina Supreme Court has historically played in redistricting and what the U.S. Supreme Court restricts it from doing, it is helpful to re-examine Blankenship and Stephenson, as well as past cases in which the state high court has grappled with how maps are drawn and what equality in voting really means.
As early as 1875, the court declared it “too plain for argument” that the General Assembly’s malapportionment of election districts “is a plain violation of fundamental principles.” This line was consistent with the court’s first assertion of duty of judicial review of legislative enactments for compliance with the North Carolina Constitution in 1787. However, the state high court has been historically reticent—like the Supreme Court in Colegrove v. Green—to wade into political waters, and in 1939 held that “[t]he [redistricting] question is a political one, and there is nothing the courts can do about it.” The court followed the revolution of election law in the 1960s with the recognition of equal protection claims in Baker v. Carr and Reynold v. Sims, establishing the one-person, one-vote principle, and the passage of the Voting Rights Act in 1965. North Carolina’s Supreme Court did not enter the thicket in a meaningful manner until Stephenson.
In 2002, North Carolina voters challenged the state legislative redistricting plans adopted by the General Assembly in Stephenson on the basis that the plans violated North Carolina’s constitution. The court specified the criteria that the General Assembly could apply in redistricting, such as, partisan advantage, incumbency protection, and communities of interest. It ultimately found that the 2001 legislative redistricting plans violated the “whole-county provisions” of the state constitution. 51 of 100 counties were divided by the senate redistricting plan and 70 of 100 counties were divided by the house redistricting plan. Whole-county provisions of the state constitution require the formation of single-member districts in legislative redistricting plans, and the boundaries of such single-member districts generally may not cross county lines. The court invoked the state constitution’s equal protection clause to hold that “the right to vote on equal terms is a fundamental right” and that each North Carolinian had the right to “substantially equal voting power.” The court’s holding relied on its findings in 1990 case, Northampton County Drainage Dist. Number One v. Bailey, in which the court reiterated that “the right to vote on equal terms is a fundamental right.” The court’s interpretation of the state equal protection clause varied from the federal Equal Protection clause, which does not subject multi-member districts to strict scrutiny—as the court did in this case—granting North Carolinians greater protection of voting than the U.S. Constitution.
In Blankenship, the North Carolina Supreme Court again interpreted the state equal protection clause to afford greater protection to voters. At issue were districts for elected judgeships, in which voters in a new district had four to five times more voting power than North Carolinians in other districts. Recognizing the tension in electing judges as representatives, while not representing people, the court held “that the right to vote in superior court elections on substantially equal terms is a quasi-fundamental right which is subject to a heightened level of scrutiny.” The court cemented the “right to vote on equal terms” and one person, one-vote in North Carolina, even though federal courts have held the one-person, one-vote standard of the federal Equal Protections clause is inapplicable to state judicial elections.
In Harper, the court applied the principles of Stephenson, Bartlett, and its jurisprudence, spanning to its very beginnings, to hold that excessive partisan gerrymandering does not conform to the state constitution. The ISL theory challenges the court’s ability to uphold its interpretation and application of North Carolina law. While the U.S. Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims are non-justiciable, the North Carolina Supreme Court has historically conferred greater protections of North Carolinians’ voting rights, and the Court further endorsed its role in 2018 via Rucho. Four years later, Moore’s petition to the U.S. Supreme Court to strip the state high court of its ability to uphold “a right to vote on equal terms” and find partisan gerrymandered maps unconstitutional will be heard this term, in one of the most consequential cases for democracy and representative government, not only for North Carolina, but for every state in the Union.
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