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Supreme Court review could give state legislators more power in redistricting

The U.S. Supreme Court
J. Scott Applewhite
The U.S. Supreme Court

Republican state lawmakers seeking more control over redistricting could get a hearing before the U.S. Supreme Court.

At a regularly scheduled conference next Thursday, the high court will consider whether to accept a petition by GOP legislators in the North Carolina General Assembly, known as granting certiorari.

Attorneys representing top Republican lawmakers filed the petition in March, asking the Court to take up arguments over a conservative principle known as the "independent state legislature" theory.

They filed the petition after the Democratic-majority North Carolina Supreme Court had tossed out a Republican-drawn congressional district map for being unconstitutionally gerrymandered on the basis of extreme partisanship and ordered a replacement. GOP legislators petitioned the U.S. Supreme Court to block the use of that map, which is in effect for this year's elections only.

A majority on the high court denied that request so close to the 2022 primaries but four justices, the requisite number for granting certiorari, indicated they would support hearing arguments over the central thrust of the Republican lawmakers' case.

The four justices were Brett Kavanaugh, who concurred in the opinion denying the request to block use of the remedial congressional map for 2022, and Samuel Alito, Neil Gorsuch, and Clarence Thomas, who dissented in the matter of blocking use of the remedial map.

The "independent state legislature" theory posits that Article I, Section 4, of the U.S. Constitution, known as the Elections Clause, gives state legislators sole authority over regulating the time, place and manner of federal elections and, therefore, prohibits the intervention of state courts.

Voting rights advocates who challenged the North Carolina congressional district map that was thrown out strongly disagree with the GOP lawmakers' arguments.

In a brief opposing the granting of certiorari, lawyers for Common Cause North Carolina noted that the Elections Clause limits state legislatures' authority by delegating the power to check them to Congress, and wrote: "If the Framers had wanted to create the exceptional situation where one sliver of state law was immune from state-court judicial review, they would have said so."

If the court grants certiorari in the case, then oral arguments could be scheduled for the fall or early next year.

Rusty Jacobs is WUNC's Voting and Election Integrity Reporter.
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