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U.S. Supreme Court rejects “independent legislature theory” in case out of North Carolina

By: Frank Corder - June 27, 2023

A general view of the U.S. Supreme Court, Friday, June 23, 2023, in Washington. (AP Photo/Mariam Zuhaib)

Writing for the dissenting three justices, Justice Clarence Thomas said of the North Carolina case that it was “a straightforward case of mootness.” He also expressed worry over the majority opinion, saying it “portends serious troubles ahead for the Judiciary.”

State courts still have a role in legislatively drawn congressional district challenges following a ruling from the U.S. Supreme Court on Tuesday in a case out of North Carolina.

In a 6-3 decision, Justices ruled against what is referred to as the “independent legislature theory,” a legal argument that theorizes that the U.S. Constitution Elections Clause leaves the regulations regarding federal elections in a state to that state’s legislative body without any checks and balances from state courts.

“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review,” wrote Chief Justice John Roberts in the majority opinion. “In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.”

Justices Roberts, Elena Kagan, Sonia Sotomayer, Ketanji Jackson, Amy Coney-Barrett, and Brett Kavanaugh were in the majority.

The Court did not rule on whether the North Carolina congressional district lines had to be redrawn.

How we got here

The case, known as Moore v. Harper, was brought after the North Carolina General Assembly drafted new federal congressional maps following the 2020 Census. Several groups challenged the redistricting over what they believed to be impermissible partisan gerrymandering in violation of the North Carolina Constitution.

A trial court in North Carolina found gerrymandering claims were nonjusticiable under the state’s constitution, but the North Carolina Supreme Court reversed the decision.

The North Carolina Supreme Court, then with a 4-3 Democrat majority on the bench, held that such questions were not beyond the reach of North Carolina courts while also rejecting the argument that the U.S. Constitution’s Elections Clause vests exclusive and independent authority in state legislatures to draw federal congressional maps.

The North Carolina Supreme Court remanded the case back to the trial court and a new congressional map was drawn by trial judges.

However, North Carolina voters spoke, sending two Republican judges to the North Carolina Supreme Court and giving the GOP a 5-2 majority on the court. In April of this year, the new majority Republican state Supreme Court revisited the prior redistricting decision, overruling the previous decision and affirming “that partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.”

Was the case moot?

That action by the newly seated North Carolina Supreme Court was the basis of the dissent from Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito.

Writing for the dissenting Justices, Justice Thomas said of the case at hand that it was “a straightforward case of mootness.”

“Here is the case before us in a nutshell: A group of plaintiffs sued various state officials under state law. The defendants raised both state-law and federal-law defenses. In the interlocutory judgment below, the State Supreme Court rejected both defenses and remanded for further proceedings. We granted review to consider the defendants’ federal defense,” Justice Thomas wrote. “But then, in subsequent proceedings, the state court revisited defendants’ alternative state-law defense and held that it was meritorious. As a result, the court finally adjudicated the whole case in the defendants’ favor, dismissing the plaintiffs’ claims with prejudice.”

Worry over the ruling

Justice Thomas went on to write that “no live controversy remains before this Court” after the action taken by the North Carolina Supreme Court. Thomas concludes his dissent expressing worry over the U.S. Supreme Court’s opinion in this case, saying it “portends serious troubles ahead for the Judiciary.”

Justice Thomas writes:

Even in cases that do not involve a justiciability mismatch, the majority’s advice invites questions of the most far-reaching scope. What are “the bounds of ordinary judicial review”? What methods of constitutional interpretation do they allow? Do those methods vary from State to State? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion? The majority’s framework would seem to require answers to all of these questions and more.

In the end, I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts. In most cases, it seems likely that the “the bounds of ordinary judicial review” will be a forgiving standard in practice, and this federalization of state constitutions will serve mainly to swell federal-court dockets with state constitutional questions to be quickly resolved with generic statements of deference to the state courts. On the other hand, there are bound to be exceptions. They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded “the bounds of ordinary judicial review” in construing the state constitution.

I would hesitate long before committing the Federal Judiciary to this uncertain path. And I certainly would not do so in an advisory opinion, in a moot case, where “the only function remaining to the court is that of announcing the fact and dismissing the cause.”

Why it matters

The North Carolina General Assembly could take up a new redistricting plan later this year. The state currently has 14 seats in the U.S. House of Representatives split evenly between Republicans and Democrats. But the Republican majority in the state General Assembly could seek to redraw the maps in a manner more favorable to their party, potentially shifting lines to allow Republicans a better chance of winning up to 4 more seats.

Such a move would be huge for national Republicans who are working to protect and expand their 10-seat majority in the U.S. House in the 2024 elections.

About the Author(s)
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Frank Corder

Frank Corder is a native of Pascagoula. For nearly two decades, he has reported and offered analysis on government, public policy, business and matters of faith. Frank’s interviews, articles, and columns have been shared throughout Mississippi as well as in national publications such as the Daily Caller. He is a frequent guest on radio and television, providing insight and commentary on the inner workings of the Magnolia State. Frank has served his community in both elected and appointed public office, hosted his own local radio and television programs, and managed private businesses all while being an engaged husband and father. Email Frank: