The NCSL Blog

05

By the State and Local Legal Center

In Moore v. Harper the North Carolina Supreme Court concluded that the state legislature engaged in partisan gerrymandering, which violated the North Carolina Constitution, when it redrew the states’ congressional, state house, and state senate maps. It ordered the legislature to redraw the maps.

US Supreme CourtThe U.S. Supreme Court has agreed to decide whether the U.S. Constitution’s Elections Clause prevents the North Carolina Supreme Court from ordering the North Carolina legislature to redraw the congressional districts.

Following the 2020 census the North Carolina legislature redistricted. Petitioners sued in state court claiming that the congressional districts violated the state constitution due to excessive partisan advantage.

They submitted testimony that maps were more favorable to Republicans than at least 99.9% of comparison maps, and the trial court ruled in their favor. Three experts testified on behalf of North Carolina’s current legislative leaders. The trial court didn’t adopt any of their findings as its own.

The North Carolina Supreme Court agreed with the trial court that the state legislature engaged in excessive partisan gerrymandering violating numerous provisions of the state’s constitution. One of those provisions is North Carolina’s “free elections” clause, “All elections shall be free.”

The U.S. Constitution says that the “Times, Places, and Manner of holding Elections for Senators and Representatives (of the U.S. Congress), shall be prescribed in each state by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations.”

In this case, North Carolina’s current legislative leaders argue that the “Times, Places and Manner” clause “forbids state courts from reviewing a congressional districting plan [that] violates the state’s own constitution,” an argument known as the “independent state legislature” theory.

The North Carolina Supreme Court rejected this argument stating it is “inconsistent with nearly a century of precedent of the Supreme Court of the United States affirmed as recently as 2015. It is also repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce absurd and dangerous consequences.”

More specifically, the North Carolina Supreme Court noted that in Rucho v. Common Cause (2019), where the U.S. Supreme Court held that partisan gerrymandering cases can’t be brought under the U.S. Constitution, the majority wrote “[p]rovisions in . . . state constitutions can provide standards and guidance for state courts to apply” in a case addressing the justiciability of partisan gerrymandering claims in congressional plans.”

Likewise, the North Carolina Supreme Court cited a number of U.S. Supreme Court cases which it opined support the proposition that “state courts may review state laws governing federal elections to determine whether they comply with the state constitution.”

To date a majority of the U.S. Supreme Court has not adopted the “independent state legislature” theory.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.