How a major election theory case at the U.S. Supreme Court could get thrown out

An unusual move by North Carolina's highest state court has raised the question of whether the U.S. Supreme Court will end up throwing out a major election case about a once-fringe theory that could upend federal elections across the country.

Late last week, the North Carolina Supreme Court — where Republican justices recently took over the majority after last year's elections — granted a request from GOP state lawmakers to rehear the case, which, at the state level, involves voting maps for both congressional and state legislative districts.

And depending on how and when the state court rules on the congressional map after its scheduled March 14 rehearing, the legal path ahead for this closely watched case at the U.S. Supreme Court could get messy.

Election watchers have been keeping their eyes on this case — known at the U.S. Supreme Court as Moore v. Harper — because it could have sweeping implications on upcoming federal elections. At its heart is the widely disputed idea called the "independent state legislature theory." It claims the U.S. Constitution gives state legislatures a special kind of power of determining how federal elections are run without any checks or balances from state constitutions or state courts.

Republican state lawmakers used that theory to justify arguing before the U.S. Supreme Court that the North Carolina Supreme Court, which previously had a Democratic majority, overstepped its authority by striking down a legislature-approved map of congressional districts for violating North Carolina's constitution.

The North Carolina Supreme Court agreeing to rehear the case has opened up the possibility that the state court's February 2022 decision against the legislature-approved map could be overruled.

That kind of reversal could make the case moot by resolving the legal dispute, which then may no longer require the U.S. Supreme Court's review.

But the country's highest court, which heard oral arguments in this case in December, could still move forward with its own ruling in this case by late June, when its current term is set to end, says Carolyn Shapiro, a law professor and co-director of Chicago-Kent College of Law's Institute on the Supreme Court of the United States.

"The timing matters. Even if the North Carolina Supreme Court ultimately says that the prior opinion was a mistake, if they do that after the [U.S.] Supreme Court rules in Moore v. Harper, I don't think it matters," Shapiro explains. "There's a little bit of a game of chicken."

And if the state court releases a new decision that overturns its earlier ruling before the U.S. Supreme Court rules, Shapiro says there could be an argument for the high court to weigh in this term during this offseason for major federal elections.

"In other types of cases, I think the U.S. Supreme Court would probably wait and see what the state court does. But because this case is of such significance in terms of how elections will operate going forward, there are good reasons for the U.S. Supreme Court to decide it now," Shapiro adds.

Another layer of complications could be introduced by how the North Carolina Republican state lawmakers and their challengers react to the state court's new ruling.

'State court elections matter'

And the flip-flopping in state court rulings that could come out of the North Carolina Supreme Court's rehearing for this case could become more common in other parts of the country, explains Robert Yablon, an associate professor of law who helps lead the University of Wisconsin Law School's State Democracy Research Initiative.

"As state supreme courts around the country are increasingly asked to address hot-button issues," Yablon says, "we may see more of these requests and we may see more shifting of doctrine in ways that we don't see quite as much of in the U.S. Supreme Court, where you don't have as much turnover as you sometimes see in state courts."

It's a reminder, Yablon adds, that "state court elections matter."

In an opinion dissenting from the North Carolina Supreme Court's decision last week to rehear both this case and another that had invalidated state voter ID requirements, the court's two Democratic justices noted that "in a single day, the majority has granted more petitions for rehearing than it has over the past twenty years."

The public's trust in the state court, wrote Justice Anita Earls in the opinion joined by Justice Michael Morgan, "depends on the fragile confidence that our jurisprudence will not change with the tide of each election. Yet it took this Court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench."

Regardless of how this North Carolina case turns out at the state court, the independent state legislature theory is likely to continue hovering around the U.S. Supreme Court's docket.

Many court watchers have noted the difficulty in answering all of the legal questions the disputed theory raises through this North Carolina case.

Republican state lawmakers from Ohio have already teed up another redistricting case about the theory that's currently waiting for the justices to decide whether to take on.

Edited by: Benjamin Swasey

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