Chief justices from across the country have a problem with NC’s big Supreme Court case
A group representing the chief justices of every state Supreme Court in the country has come out in opposition to a legal theory North Carolina lawmakers are pushing in a nationally watched case before the U.S. Supreme Court.
The case will have massive implications for the 2024 elections and the future of American elections if the state’s Republican legislators win their argument.
Specifically, the lawmakers want the court to embrace a controversial legal argument known as the “independent state legislature theory” that the late conservative Justice Antonin Scalia suggested in the Bush v. Gore case in 2000, but which has never received a majority of support on the nation’s highest court.
The theory states that the legislative branch has sole authority to manage elections — at least those at the federal level — and that therefore state courts should not be allowed to rule a legislature’s election-related actions unconstitutional.
The brief from the state supreme court justices opposes that idea, citing the 1803 case of Marbury v. Madison that established the concept of judicial review as part of the American system of checks and balances.
“Judicial review — review of a legislature’s act for its compliance with other laws and the constitution — preceded the Founding and is embedded in the U.S. Constitution and numerous state constitutions of the Founding era,” the brief states.
The case now before the Supreme Court stems from when Republican lawmakers drew new political maps for North Carolina, following the 2020 Census, but had those overturned as unconstitutional by the N.C. Supreme Court.
It was the latest in a series of high-profile lawsuits the GOP-led legislature has lost in recent years over their efforts on topics such as redistricting, voter ID, early voting and the political makeup of the state elections board.
Some say ‘repugnant,’ others ‘straightfoward’
While the brief was signed by the Conference of Chief Justices, which represents all 56 individual chief justices from the nation’s states and territories, none of them signed it individually. So it wasn’t immediately clear what at least one of those chief justices — North Carolina’s Paul Newby, a Republican — might think about the brief. A spokesperson for the state court system said Newby was not available Wednesday but may be able to respond Thursday.
The N.C. Supreme Court ruled earlier this year that the legislature’s argument is a “repugnant” idea that “would produce absurd and dangerous consequences,” The News & Observer reported. But Newby dissented from that opinion. The ruling was 4-3 along party lines, with all the Democratic justices in the majority and all the Republicans dissenting.
In other court briefs filed this week, not all were as opposed to the GOP arguments as the state Supreme Court and the national chief justices.
John Eastman, who represented former President Donald Trump in his unsuccessful efforts to overturn the results of the 2020 election, wrote a brief for the conservative Claremont Institute in this case. His brief acknowledges that the Supreme Court has ruled against the argument North Carolina lawmakers are making now, in multiple cases spanning the last century. But all those rulings got it wrong, he wrote, arguing that the court should take the opportunity now to undo that precedent.
Similarly, a brief by several conservative groups including the N.C. Republican Party says the legislature’s claim is “rather straightforward” and dismisses any criticism as “overblown lamentations spewing from some corners of the legal and political communities.”
A way to ignore future election results?
It’s unclear when exactly the court will hear oral arguments in the case. However, because the justices agreed in June to take up the case, its ruling will come out before the 2024 election.
Beyond giving state legislatures broad power to enact election laws that might otherwise be ruled unconstitutional, some critics say a ruling from the Supreme Court in favor of North Carolina lawmakers could pave the way for states to ignore the popular vote in the 2024 presidential election — and instead give their electoral votes to the candidate of whichever party controls that state’s legislature, regardless of how the people of the state voted.
That was a key piece of the failed efforts to reinstate Trump as president in 2020, wrote Michael Luttig, a retired federal judge who also served as an advisor to Trump’s vice president, Mike Pence.
“The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine,” Luttig wrote in April, of Trump’s attempts to remain in power despite losing the election.
However, not everyone agrees. Helen White, a lawyer for the group Protect Democracy, told The N&O in an interview earlier this summer that a win for the legislature might allow lawmakers to enact unconstitutional election laws. But she didn’t believe they could take that power as far as Luttig and others have suggested.
““This case is extremely dangerous to American democracy, but it would not remove all checks on state legislatures,” she said. “This would not give anyone ‘license to coup.’ But it would be devastating for voting rights and elections administration.”
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.
This story was originally published September 7, 2022 at 5:23 PM.
