NC Elections Cases at SCOTUS

MUSIC But you will feel better equipped to be a voice of persuasion for family values in your community, state, and nation. And now here is our host of Family Policy Matters, Tracy Devitt Griggs. Thanks for joining us this week for Family Policy Matters. We've talked quite a bit on this show about the U.S. Supreme Court's remarkable session that recently concluded with the landmark overruling of Roe v. Wade. But the high court also ruled on an important North Carolina specific case and agreed to take up a separate North Carolina case that could have far reaching and long lasting implications for elections, not just in North Carolina, but across the country. Well, Dr. Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation, focuses on government compliance with the law, especially regarding election policy. Dr. Andy Jackson, welcome back to Family Policy Matters. Thanks for having me.

All right. So the U.S. Supreme Court weighed in on North Carolina's continuing litigation related to voter ID in our state. What did their eight one decision in this case decide? It's important to remember that this is not a decision on the underlying case about whether or not North Carolina's voter ID law violates federal voting rights, the Federal Voting Rights Act. This is on the question of whether or not the state legislature can intervene in the case as defendants and they will date one that the legislature could. And so this is going to allow the case to proceed with lawyers hired by the state legislature defending this case from here on.

So this didn't change the status of voter ID, but what is that then? What is the status in North Carolina? Well, in status in North Carolina is that it's being held up not just in federal court, but also in North Carolina courts. And it looks like we're still at least several months of litigation ahead of us on those various cases.

Does the U.S. Supreme Court's ruling in this case have implications outside of this particular voter ID case? It does, because there's been an ongoing issue first going back a few years when Roy Cooper, who is now the governor, was the attorney general for North Carolina and now with Josh Stein. There's been a concern by members of the General Assembly that the attorney general has not been vigorously defending laws that the legislature passes.

And the legislature, of course, is a co-equal branch of government, and they have an interest in making sure that laws that they pass are defended. And there have been times when Stein has had political disagreements with the court. Perhaps most famously recently is his refusal to try to seek to reinstate North Carolina's abortion law that the General Assembly passed a few years back.

Also, he led, gave advice to the North Carolina State Board of Elections to alter, to enter into an agreement with Democratic attorney Mark Elias to alter election laws in the 2020 race. And so with this kind of history, the General Assembly wants to be able to defend laws that they don't believe Attorney General Stein or the lawyers that are working for him have their hearts in defending. And this is similar to legislation that got passed in the state budget in 2021 so that they're allowed to defend laws in state court. This ruling extends a similar protection for the legislature and federal court. You know, I've always found that to be interesting that the attorney general apparently can pick and choose which of the state laws he wants to to defend.

Is that part of his job description or is he doing something that he's really not supposed to be doing? Well, they do have some leeway. I mean, they they are independently elected.

An executive branch, of course, is a co-equal branch of government. We'll say at best it's unfortunate that he is kind of picking and choosing these cases for what appears to be political rather than legal reasons. It would be hard, I think, for the state legislature to remove him for that.

But this is kind of the next best thing. They're essentially able to sideline him from these cases that they believe that he's not really either up to the task or willing to do the task of defending laws. Right. So this provides a workaround for the legislature.

Yes. OK, so let's talk about the other case, Moore v. Harper, which the court agreed to hear. What is the question being presented in that case? Well, that one is a redistricting case, and that's a really interesting one, because what you've got going on there is a whole constitutional question about whether or not the state legislature has the full authority under the Constitution to draw districts. Is that shared with the court system? As we may recall, the North Carolina Supreme Court overturned all of North Carolina's maps, statehouse, state Senate, state legislature. The state legislature redrew the state general assembly maps, but the court itself drew the congressional maps.

So it wasn't actually drawn by the general assembly. What the question here is, it comes from the elections clause of the Constitution, which says that the manner, time and place of elections is done by state legislatures. That's specified in the Constitution. So the question is, are there bodies other than state legislatures that are authorized to influence the process or even draw maps? And that's what the Supreme Court is going to have to decide after it hears that case this October. This case, of course, is specific to redistricting here in North Carolina, but could it have implications that would affect other states?

Depends on how broad the Supreme Court applies the case. First of all, if they find for the legislature and say, yes, this is something that the Constitution, U.S. Constitution reserves for the state legislature, are they going to narrowly define that to just redistricting, or are they going to broadly apply that to all election laws? And so this could potentially affect every state in the union, because this would essentially say that as far as federal elections go, not state elections, not state legislative county commissioner, but just federal elections, only the state legislature can set regulations, rules supervised by the U.S. Supreme Court, of course, for federal elections. And this is somewhat similar to a case, I'm going to tell you, U.S. term limits versus Thornton from 1995, when the U.S. Supreme Court said that states could not add new limits beyond what the Constitution says on people serving in Congress. This was a case where the state of Washington tried to set 12-year term limits for Congress. The Supreme Court said, no, you can't do that because the terms are set by Congress and states aren't allowed to set different rules or regulations.

This would be somewhat similar in saying that the Constitution specifies that a state legislators that sets regulations for federal elections can't be overturned by Congress and supervised by the Supreme Court, so that other bodies aside from those three really don't have a say in the process. See, I love examples like this because I feel like people put so much emphasis on what happens on the federal level. And to see that states, of course, I would be interested in this because I work at a state public policy entity, but that what states do on the state level can have that bubble up effect, can't it? I mean, it can affect federal laws and policies and really have sweeping effects as well.

It certainly can. And we've seen that in the latest round of redistricting, where in numerous states, not just North Carolina, it was state judiciaries that were striking down or allowing, depending on the state, redistricting that was drawn by the various state legislatures. So it's certainly states have a big impact on, you know, kind of the inputs into our democracy. Why is redistricting so contentious in North Carolina?

It seems like this is just a perennial issue that keeps coming back. Is it like this in all states? It's not like this in all states.

North Carolina is maybe not unique, but we are unusual. I've read that North Carolina and Texas are the two most litigious states for redistricting. As a matter of fact, North Carolina, every 10 years after the census, the legislature draws statehouse, state senate and congressional maps. And we haven't had a set of three maps that have survived the entire decade since, I believe, 1981, the last time set of maps that were passed where all three survived the entire decade. Every decade, maps drawn by Republicans, maps drawn by Democrats, at least one of those maps has been struck down. And that tells you one reason that you have so much redistricting litigation in North Carolina is that it's so successful.

And if you're more likely to win a case, you're more likely to pursue the case. And so I don't see that change. And we've started the whole new decade with, you know, three new maps.

And I would imagine we might see more in the future. We still have the North Carolina Supreme Court getting ready to hear an extension of the case that overturned the congressional map. Judges do matter. I think that's another theme that we bring up quite a bit, that sometimes that's an afterthought when people look at their ballots. But these judges are really important in our state. Yes, it's an entirely co-equal branch of government. And so you have two elections this year that will determine which party is in control of that entire branch. So do we have any indication from the U.S. Supreme Court how they may be inclined to rule on some of these issues?

This is really interesting. We do know that they have what they call the rule of four for bringing up cases, writs of cert, as they say. And so we know that there's at least four justices that think there is a compelling constitutional issue here.

They don't have to sign their names on that. And we also know that there are three justices on record as saying that state legislators, not state courts, have the authority to make rules governing federal elections. Samuel Lido, Clarence Thomas, Neil Gorsuch.

I would say that those are almost definitely votes in support of that. And then we can probably assume that the three progressive justices, Hagan, Sotomayor and Brown Jackson, are going to be ruling against. And probably another against is Chief Justice John Roberts, because he wrote in Rucho versus Common Cause, a redistricting case in 2019, that state courts and not federal were the proper venue for claims of political gerrymandering.

So that leaves two justices that were kind of unsure of Brett Kavanaugh, Amy Coney Barrett. So this could be a very close decision. If they rule in favor of the North Carolina legislature, do we hope that it could calm some of this litigation? Basically, for political gerrymandering, it would eliminate lawsuits over political gerrymandering, not racial gerrymandering, which is a whole separate issue, but gerrymandering on claims that it is discriminatory based on political party. We already had a ruling in the Rucho versus Common Cause that I just mentioned that said that the federal courts are not a proper venue for that. If state courts are also cut out of this process, then federal just federal districting, not for the state legislature, but federal redistricting would essentially be out of the purview for either state or federal courts.

And so that would be a major change. And so that would eliminate a whole avenue of redistricting legislation, we would certainly still see a lot of court cases for the state districts, but yet for federal districts, it would really slow things down, if not eliminated them. There's a backdoor for this, though, there's a theory that all political gerrymandering is de facto racial gerrymandering, because of the voting patterns by race, blacks tend to vote Democratic whites are a little bit more likely to vote Republican. And so under that theory, you might see a whole new slew of racial gerrymandering lawsuits in both state and federal courts. Any chance at all that these cases are going to affect the elections this year, or even the 2024 election? They're not going to affect elections this year, because they're in the pipeline.

They have this thing called the Purcell principle. And federal courts basically says that once things are going, federal courts should avoid intervening. And so none of these cases are going to be decided in time for that principle not to apply. Almost all these cases should be resolved before the 2024 election, however, so I would expect that we're going to have some final decision on political gerrymandering claims and voter ID before 2024.

Well, we're just about out of time for this week. But before we go, Dr. Andy Jackson, where can our listeners go to follow developments related to these cases and follow your work? There's a couple places I recommend this blog called SCOTUS blog, S-C-O-T-U-S blog.

They follow all the court cases. And for North Carolina on these issues and others, you can also read my writing and the write of my colleague Jim Sterling at the John Locke Foundation, and that is at johnlocke.org. And that is johnlocke.org. Dr. Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation, thanks so much for being with us today on Family Policy Matters.

You've been listening to Family Policy Matters. We hope you enjoyed the program and plan to tune in again next week. To listen to the show online and to learn more about NC Families work to inform, encourage and inspire families across North Carolina, go to our website at ncfamily.org. That's ncfamily.org. Thanks again for listening and may God bless you and your family.