The Great Carolina Vote Robbery

North Carolina Republican are about to quite possibly:

• ...invalidate their own SCOTUS case against the NC Supreme Court 
• ...over a ruling blocking a state law 
• ...that would give the GOP-controlled legislature final say over electors in presidential elections
• ... rather than voters 
• ...just so they can have the now Republican-controlled state Supreme Court 
• ...overrule itself
• ...just in case SCOTUS rules against them.

It's bizarre, strange, legally ridiculous, and dangerous as hell. And if NC Republicans actually pull it off, it won't matter who you vote for in 2024 for president in The Old North State because the electors will be awarded to the Republican candidate. Slate's Dahlia Lithwick and Mark Joseph Stern explain:

Republican legislators in North Carolina who attacked the state Supreme Court ruling took that ruling to the U.S. Supreme Court, arguing that the state Supreme Court had violated the U.S. Constitution. Under the legislators’ radical “independent state legislature” theory, only state legislatures, and not state courts, would have any power to regulate congressional elections. Never mind that the U.S. Supreme Court in Rucho expressly pointed to state supreme courts applying state constitutions as a proper means of policing gerrymandering.

This ISL theory is a dangerous one, as many of us have long said. It would push power to state legislatures to engage in even more egregious gerrymandering, unchecked by state constitutions. It would, as Nat Bach and I argued in an amicus brief and at Slate, lead to a flood of election litigation in federal courts, giving unhappy litigants a second bite at the apple, undermining the legitimacy of both the political process and the courts. And it would leave the Supreme Court in the driver’s seat, ultimately in a position to second-guess any state Supreme Court interpretation of a state constitution that it believes goes too far.

Now, after a ton of briefing and a lengthy oral argument, the whole dispute could be moot. Republicans took control of the North Carolina Supreme Court after November’s elections, and as soon as that happened I immediately wondered if the state’s Republican legislators would try to get the partisan gerrymandering issue back before the state Supreme Court in a new case.

But the legislators did one better. Rather than filing a new case for the next round of elections, they filed a petition for rehearing in the state Supreme Court in the original case while the U.S. Supreme Court case is pending, arguing explicitly that the new justices should overturn the partisan gerrymandering standard under the state constitution.

This past Friday, on a 5-2 party line vote, the North Carolina Supreme Court agreed to hear the case and rejected Common Cause’s petition to dismiss the rehearing request. Justice Anita Earls, an elected Democrat and former election law litigator, dissented: “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.” She called the decision “an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially,’ ‘without favoritism to anyone or to the State.’ ”

The decision to seek rehearing is a curious one, and indicates some doubts on the part of Republicans that the U.S. Supreme Court’s decision in Moore would be a favorable one. After all, if you think there is a chance of getting a good ruling from the U.S. Supreme Court, why moot your case? And if you lose in the Supreme Court, you could always go back to the state Supreme Court in a new case to get the state court to reverse course.

Likely the calculation was that the legal arguments raised by the legislators in Moore are so weak that it would not lead to a decision guaranteeing the kind of legislative supremacy that they seek. Maybe kill this case, the argument could be, and hope that a better version of the arguments could be made next time.

Common Cause, too, may have reasons to argue for the case’s mootness. After all, a bad decision in North Carolina rejecting a partisan gerrymandering claim under the state constitution would only affect that state. In contrast, an embrace of the independent state legislature doctrine by the U.S. Supreme Court would have negative effects around the country.

But there is a cost here of throwing out the Moore case at this stage, and it is not just all of the lost effort on the part of lawyers, justices, and clerks. The ISL theory is not going away. It has come up in numerous cases over the last few years, and it is going to keep arising until the Supreme Court resolves it. Given the weaknesses of the legislators’ arguments in Moore, it seems like a pretty good case in which to get some clarity.

Moreover, it is far better for this ISL theory to be resolved when it is not in the context of a disputed presidential election. It is far worse when the Supreme Court’s involvement in election cases is outcome determinative, casting new doubts on the legitimacy of the courts and the electoral process. In this case, there is no individual outcome being threatened, but rather a group of future maps. And better to have rules set and understood in advance than figured out after the fact.

People may give a cheer if this new power grab by the state supreme court deprives the U.S. Supreme Court of its own possible power grab in Moore v. Harper. But postponing the inevitable will not necessarily lead to better results down the line.

In other words, the nightmare scenario isn't "SCOTUS buys the ridiculous ISL theory in June 2023", it's "SCOTUS buys the ridiculous ISL theory in June 2024 and throws the presidential election into a complete tailspin." If it does happen in June, we'd at least have 17 months to do something about it. But if that becomes five months, in the middle of the campaign, it's complete chaos.

Worse, there's a real chance that if the presidential electors are determined solely by state legislatures, Republicans would have enough of those state legislatures under control to win the White House regardless of the actual vote.

Imagine the 2020 contest, only electors Wisconsin, Arizona, Georgia and New Hampshire all went to Trump because that's what the GOP-controlled state legislatures decided, regardless of the actual vote in those states. It would have cracked the country in half. and Trump would have had enough electors to win despite losing the election and the Electoral College.

Now imagine SCOTUS rules in June 2024 that state legislatures can overrule the voters, and the Republicans in enough state legislatures declare they will award more than 270 electors to vote for the Republican months before the actual vote in November.

The country wouldn't survive.

Yeah, this is 100% worst-case scenario, but it's not totally out of the question when it should be. With the stakes this high, this SCOTUS should have tossed the case immediately.

But it didn't.

Remember that.