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WASHINGTON, D.C. (WGHP) – The defendants who will argue in the United States Supreme Court about the constitutional extent of a state legislature’s authority received a new ally on Wednesday – lots of new allies.

The chief justices from all 50 states, the Conference of Chief Justices, in a nonpartisan amicus brief written by counsel, urged that the Supreme Court should reject the argument proffered in Moore v. Harper et al: that the U.S. Constitution gives full authority to draw congressional election maps to state legislatures without review by state courts.

This has been a long-running issue in North Carolina, but it has played out in many other states, too. Election maps drawn by lawmakers largely have been tossed out by courts (both federal and state) for being illegal gerrymanders that disenfranchised voters because of race (pick your court ruling on those).

From left, Superior Court Judges Nathaniel Poovey, Graham Shirley and Dawn Layton listen to testimony from Jowei Chen, a political scientist from the University of Michigan, not pictured, during a partisan gerrymandering trial over North Carolina’s new political maps Monday, Jan. 3, 2022 at a courtroom at Campbell University School of Law in Raleigh, N.C. (Travis Long/The News & Observer via AP)

This storyline played out most recently earlier this year, when the North Carolina Supreme Court, in a 4-3 vote along partisan lines, ordered a trial court in Wake County to take the maps drawn last fall by lawmakers and see that they are fairer for Congress and the General Assembly. A 3-judge panel did just that in February, setting the districts for the current election cycle. 

Lawmakers appealed that process to the U.S. Supreme Court, which rejected their arguments largely because of timing, but Associate Justice Brett Kavanaugh seemed to indicate the court might consider these arguments in some future case, which we learned in June would happen.

North Carolina House Speaker Tim Moore (R-Cleveland), whose name appears as the plaintiff, had praised the court’s decision to hear the case and said it was important for “the security of elections nationwide.”

NC House Speaker Tim Moore (R-Cleveland)

“On the heels of another victory at the U.S. Supreme Court, I am confident that this court recognizes what our state Supreme Court failed to recognize — that the United States Constitution explicitly gives the General Assembly authority to draw districts and that authority must be recognized,” he said in June.

Rick Hasen, a law professor at the University of California, Irvine, told The Associated Press at the time that “this case could profoundly alter the balance of power in states and prevent state courts and agencies from providing protections for people’s right to vote. “There’s a wide range of ways the court could rule on this. Taken to its extreme, it would be a radical reworking of our system of running elections.”

Now we have this brief from the chief justices, authored by Evan Caminker of the University of Michigan Law School and principally Carter G. Phillips of Sidley Austin LLP in Washington, that says “no counsel from either party authored this brief in whole or in part.” Every chief justice agreed to its content.

And its first argument is a salvo at the underpinnings of Moore v. Harper: “The Elections Clause does not bar state court review of state laws governing federal elections under state constitutional provisions.”

For 36 pages the attorneys lay out their precedents. One of those is the argument that the “overwhelming majority of States have made their courts directly accountable to the people through partisan or nonpartisan elections, reelections, retention elections or recall elections,” meaning that those who are elected are held accountable for their decisions.

“Courts do not cease to act judicially when they interpret and apply general constitutional provisions such as ‘free’ or ‘fair’ elections’ or ‘equal protection,’” the brief asserts.

State’s rights at play

The brief establishes that: “Any federal court review of state court decisions interpreting state laws governing federal elections must be tightly circumscribed and apply clear limits.”

That is founded on the concept that federal courts have to be “deferential” to state laws when making such determinations. It also says that legislatures can make state laws governing federal elections as long as they are “grounded in the U.S. Constitution.”

The brief reinforces the concept that state courts using traditional approaches to review state laws are acting in a judicial role, not a legislative one. It allows each state may have a somewhat different “separation of powers.”

The brief suggests that federal judicial review of a state court’s decisions about election law should be held to a standard that prevents “unnecessary intrusions on state sovereignty.”

In a footnote is this underpinning a nonpartisan role as well:

“’Open-ended’ constitutional provisions do not necessarily lend themselves to liberal rather than conservative rights. ‘Fair’ election provisions can support judicial rulings that prevent fraud, as well those that protect voter access.”

The bottom line is that a decision on this case could hamstring courts and voices on both state and federal levels going forward.

This is the current congressional map that the U.S. Supreme Court reviewed this spring. (NC GENERAL ASSEMBLY)

‘Highly deferential’

Its conclusion: “The Conference respectfully submits that this Court should clarify that the Elections Clause does not oust state courts from their traditional role in reviewing election laws under state constitutions. And if the Election Clause imposes any independent constraint on state-court review of state election laws governing federal elections — one that overrides the foundational rule that state courts authoritatively determine the meaning of state law — that review should apply a clear standard and be highly deferential to state court decisions.”

Bob Phillips of Common Cause, North Carolina, a plaintiff in voting rights cases, said in June that the legislature’s suit is “a radical power grab.

“Self-serving politicians want to defy our state’s highest court and impose illegal voting districts upon the people of North Carolina. We will continue to stand up for the people of our state and nation as this case goes to the U.S. Supreme Court. We must stop this dangerous attack on our freedom to vote.”