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SCOTUS hears oral arguments in historic federal elections case from NC

Common Cause National Redistricting Director Kathay Feng, and attorney Neal Katyal take a question from a reporter in front of the Supreme Court in Washington, Wednesday, Dec. 7, 2022, as the Court hears arguments on a new elections case that could dramatically alter voting in 2024 and beyond.
Andrew Harnik
Common Cause National Redistricting Director Kathay Feng, and attorney Neal Katyal take a question from a reporter in front of the Supreme Court in Washington, Wednesday, Dec. 7, 2022, as the Court hears arguments on a new elections case that could dramatically alter voting in 2024 and beyond.

A high-stakes election case. That's how observers are describing a legal battle over redistricting from North Carolina that made it all the way to the U.S. Supreme Court. At issue is whether lower courts can take action when they decide that a state legislature has created gerrymandered districts — which is exactly what the North Carolina Supreme Court did earlier this year when it struck down district maps drawn by Republicans who control the General Assembly.

WUNC Capitol Bureau Chief Jeff Tiberi was at the U.S. Supreme Court for the oral arguments in Moore v. Harper. He joined WUNC Host Will Michaels to break down the case.

This conversation has been lightly edited for brevity and clarity.

Will Michaels: What exactly are the main questions before the court?

Jeff Tiberii: Simply put: should state courts be limited or eliminated from reviewing congressional districts — U.S. House maps — drawn by state lawmakers? A little bit of context here, this comes out of a round of redistricting that took place in North Carolina earlier this year, in which ultimately, the state Supreme Court twice blocked districts drawn by Republican state lawmakers, and then tasked three special masters or experts to draw their own lines, which were used during the recent midterm. Republicans said this was without precedent, they brought this appeal because they don't ever want to see this happen again.

Michaels: So how did each side make their cases before the US Supreme Court?

Tiberii: So the defense, that's the side of Republican state lawmakers here, says this all is pretty straightforward. [They say] the U.S. Constitution, specifically the election clause, grants state legislatures the power to dictate the times, places and manners — that's the key phrase: times, places and manners — to hold federal elections. Their provision is known colloquially as the independent state legislature theory or ISL theory. And Republicans here contend that state courts need to be effectively eliminated from this process.

The other side, the plaintiffs — this is the side that originally brought the lawsuit — it's made up of 25 North Carolina voters. They say, in short, this is preposterous. That it goes against 233 years of precedent, it upends the basic checks and balances and serves to potentially create some major consequences as it pertains to federal elections in our country.

Michaels: So what could those consequences be? Why is this so high stakes?

Tiberii: Without checks and balances, legislatures can do whatever potentially, they want. That's Republican state lawmakers in North Carolina, Democratic lawmakers, state lawmakers in the state of New York and you can obviously come up with some other examples. It would give them potentially great autonomy. Now, Republican state lawmakers have addressed this to a degree and they say: "Now listen, wait a second. That is a little bit hyperbolic. There is still the federal judiciary. There are still challenges that could be made in federal court."

But I would be remiss if I didn't note, a different case that came out of North Carolina just three and a half years ago, the Rucho v. Common Cause case. It was a partisan gerrymandering challenge. This was the case that came out of our state, all the way to the U.S. Supreme Court. And ultimately, the U.S. Supreme Court said that partisan gerrymandering is a non-justiciable issue. [It] can't come before federal courts. And, I guess more importantly perhaps even, in that ruling they said: you can still take these challenges to state courts.

So potentially, what we're looking at three and a half years later, is an undoing of their own decision from just three and a half years ago. So you can start to think about early voting, voter ID, and you can potentially stretch this to many other realms, many other important elements that size up the framework of federal elections.

Michaels: There are some times the justices ask questions in these oral arguments that might give some sort of indication as to what their own positions might be on the subjects. What did you hear from the justices?

Tiberii: I'm not a lawyer, I will not pretend to play one on the radio. That said, all of the justices were very engaged in these arguments. These stretched almost three hours, these oral arguments, on Wednesday morning. The conventional wisdom here is not whether Republicans win, but if this is a narrow ruling, or if the court really takes to the ISL theory and runs with it. And that's the big question and one that we're probably going to be waiting on until late June.

Will Michaels is WUNC's Weekend Host and Reporter.
Jeff Tiberii is the co-host of WUNC's "Due South." Jeff joined WUNC in 2011. During his 20 years in public radio, he was Morning Edition Host at WFDD and WUNC’s Greensboro Bureau Chief and later, the Capitol Bureau Chief. Jeff has covered state and federal politics, produced the radio documentary “Right Turn,” launched a podcast, and was named North Carolina Radio Reporter of the Year four times.
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