U.S. Supreme Court votes 6-3 to deny N.C. legislators' redistricting appeal

By Mitch Kokai, Carolina Journal

The U.S. Supreme Court has voted 6-3 to deny N.C. legislators' request to block a court-drawn congressional map for North Carolina. The high court's decision should end legal action connected to new N.C. election maps for the 2022 election cycle.

Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented from the decision announced Monday evening. Justice Brett Kavanaugh concurred with the result but supported some of the dissenters' conclusions.

"This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections," Alito wrote. "There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasion to address the issue."

"We will have to resolve this question sooner or later, and the sooner we do so, the better," Alito added. "This case presented a good opportunity to consider the issue, but unfortunately the Court has again found the occasion inopportune."

Alito signaled support for a key argument N.C. legislators put forward. "The Elections Clause provides that rules governing the 'Times, Places, and Manner of holding Elections for Senators and Representatives' must be 'prescribed in each State by the Legislature thereof,'" Alito wrote. "This Clause could have said that these rules are to be prescribed 'by each State,' which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously."

The dissent takes aim at N.C. state judges who appeared to be legislating from the bench. "Only this year did the State Supreme Court change course and discern in the State Constitution a judicially enforceable prohibition of partisan gerrymandering," Alito wrote. "Explaining the reasons for this new interpretation, the court noted that the State Constitution is difficult to amend and that North Carolina is 'a state without a citizen referendum process.'"

"The court concluded that 'the only way that partisan gerrymandering can be addressed is through the courts.' ... These explanations have the hallmarks of legislation."

The case deals with more than just a state court interpreting a state constitution, according to the dissent. "The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause," Alito wrote. "And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections."

Kavanaugh refused to go along with his three dissenting colleagues, citing the likely disruption to North Carolina's election timeline. But he expressed interest in dealing with the issue outside of the process of an emergency petition.

"I agree with Justice Alito that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits," Kavanaugh wrote in his concurrence. "The issue is almost certain to keep arising until the Court definitively resolves it."

"Therefore, if the Court receives petitions for certiorari raising the issue, I believe that the Court should grant certiorari in an appropriate case — either in this case from North Carolina or in a similar case from another State," Kavanaugh added. The court grants certiorari when it agrees to hear a case. "If the Court does so, the Court can carefully consider and decide the issue next Term after full briefing and oral argument."

Legislative leaders filed paperwork Feb. 25 requesting emergency action from the nation's highest court. They argued that the state's courts overstepped their authority by tossing out two congressional maps drawn by lawmakers.

"We are disappointed in the U.S. Supreme Court's decision allowing elections under a Congressional map drawn by the conflict-ridden special masters to continue," said Senate leader Phil Berger, R-Rockingham, in response to the decision.

A three-judge state Superior Court panel that threw out lawmakers' congressional map relied on advice from three outside advisers called special masters. The special masters — former N.C. Supreme Court Justices Bob Edmunds and Bob Orr and former UNC System President Thomas Ross — drew the map that's now scheduled for use in 2022 elections.

"While we're focusing on the 2022 elections, we will continue to evaluate this decision and next steps in this case," Berger added.

“We applaud the Supreme Court for their decision today, allowing orderly elections to proceed with a congressional map that treats all citizens fairly and equally, regardless of party, region, or race,” said attorney Zach Schauf, representing the N.C. League of Conservation Voters. NCLCV is one of multiple plaintiffs that had challenged state congressional and legislative election maps.

With the U.S. Supreme Court's decision, North Carolina should be able to proceed without further legal roadblocks toward May 17 primary elections. The three-judge Superior Court panel upheld separate maps legislators drew for state House and Senate elections. The N.C. Supreme Court declined all requests to reverse the Superior Court's decision.

Candidate filing for primary elections ended Friday.