[EL] Breaking: North Carolina Supreme Court, on 4-3 Party Line Vote, Strikes Down Congressional and State Legislative District Plans in Violation of the State Constitution

Fri Feb 4 16:09:35 PST 2022

Some of us have argued for quite some time that the independent state legislature doctrine applies to choice of presidential electors but probably not (as a matter of long-standing precedent ) to laws regulating the manner by which congressional elections are held. There also is the separate question as in the Arizona case whether the legislature may be cut out of the process entirely. I won’t repeat the arguments previously made on this list absent request.

Mark

Prof. Mark S. Scarberry
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Sent: Friday, February 4, 2022 3:48:48 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Breaking: North Carolina Supreme Court, on 4-3 Party Line Vote, Strikes Down Congressional and State Legislative District Plans in Violation of the State Constitution

Could North Carolina Go to the Supreme Court, Arguing that the North Carolina Supreme Court in Requiring Redrawing of Congressional Districts Usurped North Carolina General Assembly’s Power?<https://electionlawblog.org/?p=127450>

February 4, 2022, 3:47 pm<https://electionlawblog.org/?p=127450> redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29> RICK HASEN<https://electionlawblog.org/?author=3>

>From my tweet thread<https://twitter.com/rickhasen/status/1489743875782500353?s=20&t=HmZugoMhU_3_f_JOb-upBw>:

Maybe this is crazy, but I could see Republicans appealing to SCOTUS, arguing that the state court ruling usurped the power of the state legislature to set the rules for congressional elections in Art. 1 s 4. Would require SCOTUS to overturn Arizona Ind. Redist. case. This would be a way to test the so-called “independent state legislature” theory outside the context of a presidential election and with a target that SCOTUS conservatives don’t like: a Democratic dominated state supreme court in a state with a Republican legislature.

The argument is audacious and wrong: it is that a state Supreme Court relying on a state constitutional right does not have any power over a state legislature setting rules for congressional elections. It would rely on the Bush 1 concurrence from the 2000 election. And it would be in great tension with the Supreme Court’s decision in 2015 holding that Arizona voters could set up an independent redistricting commission cutting out the legislature without violating Art. 1 s 4.

But Justice Kavanaugh recently wrongly suggested that the 2000 Bush v. Palm Beach County Canvassing Board endorsed the independent state leg doctrine when Fla Supreme Court relied on state constitution to alter time limits for recounts. And the 2015 Arizona case was 5-4, with CJ Roberts writing one of his strongest dissents. The Court personnel has changed and 2 of the Justices in the majority are no longer on the Court.

Would they overturn precedent so quickly, in such a highly political case, especially after SCOTUS in Rucho pointed to independent commissions and state courts as paths for dealing with partisan gerrymandering? And would Republicans want to open up states like California to naked partisan gerrymandering by Democratic legislatures? We will see. It would be ugly and terrible and have bad ramifications for voting laws passed by initiatives.

I should be clear that such a ruling, if successful, would apply *only* to order to redraw CONGRESSIONAL maps, not state maps.

From: listserv messages <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Date: Friday, February 4, 2022 at 3:25 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Breaking: North Carolina Supreme Court, on 4-3 Party Line Vote, Strikes Down Congressional and State Legislative District Plans in Violation of the State Constitution

Breaking: North Carolina Supreme Court, on 4-3 Party Line Vote, Strikes Down Congressional and State Legislative District Plans in Violation of the State Constitution<https://electionlawblog.org/?p=127442>

February 4, 2022, 3:18 pm<https://electionlawblog.org/?p=127442>redistricting<https://electionlawblog.org/?cat=6>RICK HASEN<https://electionlawblog.org/?author=3>

This result <https://www.democracydocket.com/cases/north-carolina-congressional-partisan-gerrymandering-harper-ii/> was anticipated given the court’s earlier rulings along these lines and the partisan split on the court. The court promises a more extensive opinion to follow.

Of particular interest is this statement to guide the state legislature in drawing new maps, which are due by Feb. 18:

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