North Carolina is no stranger to making political waves, and in the weeks ahead, the Tar Heel State’s internal battles could create ripple effects across the country.
On Wednesday, the U.S. Supreme Court will hear arguments in Moore v. Harper, which stems from the North Carolina Supreme Court’s decision to reject a congressional district map drawn by the state legislature that the court found to be so extremely gerrymandered, it was unconstitutional. The former’s pending ruling could have major ramifications for the division of power over elections in every state in the country. It’s also the culmination of a decade-long effort by North Carolina Republicans to cling onto power.
Depending on how it rules, the Supreme Court could give partisan state lawmakers even greater power to draw district lines and run elections, while weakening the authority of state courts to keep those powers in check. And in charting the course of this case, it’s clear exactly what the plaintiffs — North Carolina Republicans — hope to gain. The story starts over a decade ago, when the GOP took control of the Tar Heel State’s legislature, and winds up at the steps of the Supreme Court, where some of those same Republican lawmakers are hoping to shore up their power in a fast-growing and demographically shifting state.
Moore v. Harper emerged from a quagmire of political warfare that has been swirling in the Tar Heel State for decades. It all began … well, truthfully, it all began a few centuries ago, but for brevity’s sake, let’s start in the slightly more recent history: the 2010 midterms. Republicans rode a red wave to win control of both the North Carolina House and Senate for the first time since Reconstruction. The win was partially aided by REDMAP, a project helmed by former Republican National Committee Chairman Ed Gillespie that funneled funds into statehouse races with the explicit aim of gaining Republican control over the upcoming redistricting cycle following the 2010 census. And since North Carolina is one of a minority of states where the governor has virtually no power over drawing district maps, the newly GOP-controlled state assembly had total control over the redistricting process.
They wasted no time getting to work, hiring a GOP strategist renowned for his skill at crafting expertly gerrymandered maps. He lived up to his reputation, helping the state legislature draw a map that would have likely given Republicans an additional four Congressional seats. It was quickly challenged in court by a coalition of voter rights groups including the state NAACP and League of Women’s Voters, kicking off a protracted saga of courtroom battles.
“Every single election after that, with the exception of 2020, […] every one of those maps adopted, state and congressional, were eventually tossed and ruled unconstitutional,” said Bob Phillips, executive director of Common Cause North Carolina, a nonpartisan government reform group that has frequently joined on court challenges over the maps. “And I don’t know if there’s any other state in America that can say that.”
As the legal ping-pong continued, it was no secret that state lawmakers were set on drawing maps that would favor the GOP. At the time, Rep. David Lewis, a Republican member of the General Assembly’s redistricting committee said: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” These maps weren’t just theoretically skewed in the Republicans’ favor: In election after election, Democrats would receive a much lower share of seats compared to their share of the popular vote.
This legal battle eventually made its way to the Supreme Court in 2019 as Rucho v. Common Cause (Rucho being Bob Rucho, the former chair of the state Senate Redistricting Committee). In a landmark 5-4 ruling, the court seemed to put the whole issue to bed by essentially saying “actually, federal courts don’t have a say when it comes to cases around partisan gerrymandering,” closing down one avenue to legally challenge extremely gerrymandered maps.
And while all that cartographical drama was unfolding, there were yet more power struggles happening in the statehouse. In the heady final weeks heading into the 2016 election, Hurricane Matthew made landfall in the southeast portion of the state, causing widespread, deadly flooding and otherwise wreaking havoc for weeks. By December, it was perfectly reasonable for the GOP-controlled General Assembly to hold an emergency session to avail disaster relief funds. And if it happened to use that session to also strip the incoming Democratic governor of various powers and responsibilities — notably the power to appoint members of the state election board — well, that was just the cherry on top.
The election of former Charlotte Mayor Pat McCrory as governor four years earlier had given Republicans in the state a rare trifecta, and they weren’t going to relinquish such power without a fight. After his defeat in 2016, McCrory’s campaign set up a legal defense fund and protested vote counts in 50 counties, citing “irregularities” and making allegations of voter fraud, for which some campaign supporters were later sued, before conceding a month after the election. Then the state assembly stripped incoming Gov. Roy Cooper of much of the powers the office had enjoyed — most of which Cooper clawed back through lawsuits.
McCrory said this wasn’t a partisan move because that same legislature had actually tried to strip powers from the governor even while he was still in office — he, too, had to sue to keep certain powers under the administrative branch. “There are constantly power struggles between the legislature and the executive branch, and not just with the governor,” McCrory said in an interview with FiveThirtyEight. “That’s been a constant battle in North Carolina for years.”
In 2020, the pandemic ushered in a new drama. Republicans in the state legislature tried to get the Supreme Court to weigh in on a dispute over changes to election rules around the pandemic, but they were rebuffed.
Just as disputes over the last district maps, drawn a decade earlier, finally came to a close, it was time to draw new maps once again. Thanks to the continued flow of new residents to the Tar Heel State, North Carolina gained a new district after the 2020 census. The state legislature approved a map that converted 13 districts — eight Republican-leaning seats, five Democratic-leaning ones — to 14, with three highly competitive districts, four Democratic-leaning seats and seven Republican-leaning ones. It went about as well as the last time the state went through redistricting. Voting rights groups sued, and the Democrat-controlled state Supreme Court threw the maps out and ordered the lawmakers to try again. When the state legislature presented new maps to a three-judge panel, the state House and Senate lines were affirmed — but not the congressional districts. At this point, with the primary elections looming, the judges enlisted a group of outside experts to draw up maps to be used in the meantime. The state Supreme Court ruled it was within the lower court’s authority to do so. The state legislature disagreed.
But to get the Supreme Court to weigh in on these kinds of state-level issues, Republicans in the statehouse needed a constitutional hook. They had toyed with just such a legal hook when trying to get the Supreme Court to arbitrate the pandemic disputes, and while the court declined to take up the case, some of the more conservative justices signaled support for the legal theory Republicans put forward, emboldening the GOP to find another way to get it in front of the court.
The independent state legislature theory is based on a very literal interpretation of a line in the U.S. Constitution (in Article 1, Section 4), which reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Disregarding the gratuitous use of capital letters, that basically means that states get to set up all the rules around election administration — like whether voters can vote by mail, or what time polling locations close — unless Congress has created a superseding rule, like the fact that elections must be held on the first Tuesday following the first Monday in November. The key words are “legislature thereof,” which proponents of the ISL theory take at face value: Legislatures alone are charged with determining how elections are run in their respective states.
Opponents of this theory argue that historical context and centuries of precedence show that “legislature” means all of the state bodies that are generally involved in setting laws, including not only legislatures but also constitutions, courts and election boards. And in fact, in its ruling in Rucho v. Common Cause, the Supreme Court explicitly noted that federal courts shouldn’t be weighing in on partisan gerrymandering … but state courts could, based on state statutes and constitutions.
Jason Torchinsky, a senior adviser and general counsel for the National Republican Redistricting Trust who has written an amicus brief for Moore v. Harper, said he didn’t see the case as aimed at stripping state courts of their role in redistricting. Instead, he said the main issue was whether the court overstepped its bounds by instituting new maps, rather than simply striking down the original maps.
“I don’t know that there would be a decision that would basically say, ‘No challenges under the state constitution may ever be brought in North Carolina,’ because I don’t think that that’s what this case is about,” Torchinsky said. “This case is about that line drawing that I mentioned. There’s a difference between interpreting a law and making a policy.”
Once again, political power struggles within North Carolina threaten to leach out into the rest of the country. If the Supreme Court decides to endorse even part of the ISL theory, it could sap the power state courts have to serve as a check on state legislatures when it comes to redistricting or elections more broadly. Already limited in what cases they could bring to federal court, voters unhappy with the laws their elected officials pass could lose yet another avenue to make their case. It could even mean that voter-led changes to election laws — like the efforts that brought ranked-choice ballots to Alaska or established an independent redistricting committee in Colorado — could be made illegitimate since they weren’t enacted by the state legislature.
This case goes beyond the borders of North Carolina, but understanding the political climate that spawned it gives a clear picture of what’s at stake for the rest of the country. The ongoing political warfare to gain and hold power could be replicated in other states by politicians of both parties, if ISL theory — even partially — becomes the law of the land.