Last Call For It's About Suppression, Con't

With their possible options down to Hail Mary status as North Carolina's Supreme Court has ruled their gerrymandering plans unconstitutional again and again, NC Republicans are throwing a long bomb to the US Supreme Court in order to create a vile precedent that would leave the final word on redistricting up to state legislatures, not state supreme courts, and remake redistricting across the country.

In a late Friday afternoon filing as war raged in Ukraine and as President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to replace Justice Stephen Breyer on the U.S. Supreme Court, North Carolina Republicans dropped their own bombshell: a legal filing in the Supreme Court that if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. There are strong arguments Republicans should lose this case, but don’t count them out before a polarized and politicized Supreme Court.

A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court shut the federal courthouse door to partisan gerrymandering claims—claims that political parties drawing maps for electing members of Congress or state legislative bodies manipulated those maps purely for partisan gain. The Rucho court majority opinion by Chief Justice Roberts explained that there were other paths for reining in this conduct, including Congress passing legislation (as the Freedom to Vote Act would have done), the creation of independent commissions, and state courts. Indeed, the court noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing nefarious redistricting practices.

And that’s exactly what happened in North Carolina. The state Supreme Court recently held that the North Carolina Republican-controlled legislature’s gerrymandering of Congressional and other districts was a partisan gerrymander grossly favoring Republicans violating the state constitution’s provisions guaranteeing free elections. This ruling was going to lead to a much fairer map in a state that is mostly evenly divided between Democrats and Republicans.

Now the Republican-dominated general assembly has struck back raising what’s come to be known as the “independent state legislature” theory. This move was something I feared would happen weeks ago as Republicans were running out of options. They’ve argued in a new filing before the Supreme Court that the North Carolina Supreme Court does not have the power even in reliance on the state Constitution and despite Rucho to rein in partisan gerrymandering of congressional districts when done by a state legislature.

 

The GOP argument is that since Article I, section 4gives the state legislatures the power to set elections, Republicans argue they are the final arbiter, and without judicial oversight at all. It's hogwash, but if there's five votes on SCOTUS, then that's how it is.

We'll see if the dreaded shadow docket strikes again.