Another case over political redistricting in North Carolina is headed for the United States Supreme Court. The question this time, in Moore v. Harper, is over the latest congressional maps and whether or not the state court had the power to redraw the map for the 2022 congressional elections.

But the legal fight could have broader implications for how federal elections are run by the states. The case, appealed to the Supreme Court by Republican leaders in the North Carolina General Assembly, includes what’s called the “independent legislature theory” that could potentially take away any power state courts have to rule on cases involving federal elections.

What is the case about?


The facts in the case go back to last year when the General Assembly went through redistricting, a process that is supposed to come once a decade to redraw electoral boundaries for congressional seats and legislative districts.

A court ruling found the Republican-led General Assembly gerrymandered the districts for state and local races, essentially drawing the lines to assure Republicans would win more seats. The North Carolina Supreme Court ordered the legislature to redraw the lines. The court accepted the new maps for the state House and Senate, but had a special master redraw the congressional maps.

Those new maps are what North Carolina will use for the next congressional election this fall.

Republican leaders in the legislature have now appealed all the way to the Supreme Court, arguing that the North Carolina Supreme Court didn’t have the power to force changes to the maps.

“There’s a conflict between the folks who control the state legislature here in North Carolina and the Supreme Court of North Carolina,” said Ted Shaw, a legal scholar and professor at the UNC School of Law.

An earlier U.S. Supreme Court ruling in another case over redistricting in North Carolina found that issues of partisan gerrymandering, meaning drawing electoral districts to favor one political party over another, were not questions of federal law.

But that’s not the case when it comes to state courts in North Carolina, Shaw said.

“The State Constitution has been interpreted by the highest court in North Carolina as banning or prohibiting partisan gerrymanders,” he said.

But this latest case hinges one Article 1, Section 4 of the United States Constitution: “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature.”

The argument, Shaw explains, is, “There is a provision under the United States Constitution, that prohibits, at least with respect to federal elections, prohibits the North Carolina Supreme Court from drawing legislative districts.”

What is the “independent legislature” theory?


“The independent state legislature theory rests on Article 1, Section 4 of the U.S. Constitution,” said Shaw.

“If that theory is going to prevail, it means that even when there is a political or partisan gerrymander, as there was found to be by the North Carolina Supreme Court, that the North Carolina Supreme Court can’t redraw the districts,” he said.

The question over the “independent state legislature theory” has become a partisan issue, with left-leaning groups arguing against it.

Organizations and state legislatures that lean Republican or run by the GOP have argued for the theory in briefs filed with the Supreme Court supporting North Carolina Republicans’ case.

“The question has broader significance and broader reach,” said Shaw. If a state court decides the legislature did something unconstitutional with federal elections, as it did with redistricting last year, can the courts do anything about it?

“The question is, what happens when the state legislature refuses to comply with the court ruling,” Shaw said. “It goes to whether or not a constitutional ruling, whether on the state level or the federal level, will lead to a remedy.”


Why are some worried about that theory?

The concern by some, especially on the left, is that the case opens up a door for the United States Supreme Court to give much broader powers to state legislatures when it comes to federal elections.


“They’ll say it’s this narrow question of whether the state courts can interpret the state legislature’s redistricting using this vague constitution language,” said Asher Hildebrand, a public policy professor at Duke University who has been involved in the redistricting lawsuit testifying about gerrymandering.

“But what it also is is an invitation for the Supreme Court to take up this broader idea called ‘independent state legislature theory’ which is basically the idea that state legislatures have nearly unfettered control over federal elections under the constitution and there’s nothing state courts or anybody else can do to control that,” Hildebrand said.

“It’s like the cartoons where the character cracks open the door and a freight train comes barrelling through,” he said. “The Supreme Court can consider it as narrowly or broadly as it wants to.”

A broad ruling, Hildebrand said, could have major impacts on how states run federal elections.

“Once you open the door to saying that state legislatures, and state legislatures alone, get to control one aspect of the ‘times, place and manner of elections,’ then you really see the slippery slope to any other aspect of federal elections, including voting rights, including voter registration, including how voter lists are managed, purged, including who administers the elections, who certifies the results,” he said.

What comes next?


The United States Supreme Court agreed to hear the case last summer, but there is still no schedule set for when the justices could hear arguments.

Either way, the case should not have any impacts on North Carolina’s Nov. 8 midterm elections.

“The Supreme Court could expedite its ruling and give a ruling on whether or not this independent state legislature theory in fact is going to prevail and the North Carolina Supreme Court remedy is invalid,” said Shaw, with the UNC law school.

“The U.S. Supreme Court could give a ruling that falls short of a final ruling but affects what’s going to happen in an interim period,” he said.

But beyond that, Shaw said, “Now you have a United States Supreme Court that is the most conservative supreme court that anyone alive has ever seen.”

The conservative majority could encourage legislatures in Republican states to be more activist and pass more laws to test with the current Supreme Court.

How could the court rule?


According to Shaw, three justices on the Supreme Court have already indicated they support the “independent legislature theory” and a fourth, Brett Kavanaugh, has said it has some merit.

The big question for Hildebrand is if the Supreme Court would give a narrow ruling specifically on the issue of this congressional map in North Carolina or issue a broader decision on the role of state courts in federal elections.

It could, in effect, take away checks and balances on how state legislatures run federal elections.

“You think about state courts as one of many safeguards protecting democracy and protecting the rights of citizens,” Hidebrand said.

“They have been, for most of history, part of the barricades of democracy,” he said. “What this case could do is remove those barricades at a time when many of the other guardrails are also teetering or at risk of being removed.”