Congressional redistricting is on the U.S. Supreme Court docket in December, with North Carolina front and center. Moore v. Harper will decide whether the state Supreme Court can strike down congressional maps that have been gerrymandered by the state legislature.

The eventual ruling could have enormous ramifications for the entire country.

The case is a complicated mix of politics, law, and the courts, and it began with the most recent partisan gerrymander following the 2020 census. A gerrymander is when the boundaries of an electoral district are drawn to favor one party over another. In this case, they were drawn by the Republican-dominated state legislature to guarantee a supermajority of North Carolina’s 14 congressional seats — ten for the Republicans and four for the Democrats.

"That's like walking out of the store with your pockets bulging and saying, 'I didn't take anything,'" says University of North Carolina at Greensboro political science professor Hunter Bacot. "You're guilty just by appearance."

Voters contested the map in state court in Harper v. Hall on the grounds that it violated the state constitution’s free elections clause, guaranteeing equal voting power across districts. Bacot says the North Carolina Supreme Court agreed, describing it in part as an “egregious and intentional partisan gerrymander,” and ordering a redraw.

“They redrew the map and it was still a favorable map for Republicans,” says Bacot. “I think it broke down to nine to five. That was kind of the map that they came back with. And the court said — and this is because the court has a majority of Democratic representatives of the justices — that they felt that was still too much of an imbalance.”

So, the congressional district maps were ordered to be redrawn again, but this time by independent court-appointed special masters who took the evidence presented in the case to draw maps accordingly within those parameters to be used only for the 2022 U.S. House elections. Bacot says those maps appear fair, but several underlying elements may cause them to fall apart.

To begin with, he says, the maps are based on a conventional 50/50 Republican-Democrat split, but a third of North Carolina voters are unaffiliated. Compounding the problem are the state’s huge geographic disparities between large rural areas and an urban corridor extending all the way from Charlotte to Raleigh. 

Regardless, these are the maps that will be used in November for the U.S. House of Representatives races. And in the state legislature, where Republicans are only five seats shy of achieving a veto-proof majority, Bacot says the midterm maps have been okayed by the courts too.

“But they identified 14 counties for house districts and about eight or nine counties for Senate districts that needed special attention because of the way those districts were drawn,” he says. “As you can imagine, most of those counties are in urban areas.”

Despite their shortcomings, those state maps, like the congressional maps, will go forward in November, but they will be redrawn before the 2024 election. Appeals — like the Republican legislators’ Moore v. Harper case — ask the U.S. Supreme Court to decide whether the North Carolina Supreme Court actually has the constitutional power to order those re-drawings.

“It is probably one of the most important Supreme Court cases that we will hear in 100 years,” says Bacot. “It has that sort of magnitude because of this independent legislature doctrine.”

This doctrine is also known as the independent state legislature theory. The plaintiffs in this case, like the named plaintiff, Republican Speaker of the North Carolina House of Representatives Tim Moore, believe that the state legislature has the right to redraw federal election congressional district maps. And, in their view, it comes with unlimited and un-reviewable power.

It’s a constitutional argument that’s been around for many years, and its advocates base their position on actual provisions within the U.S. Constitution. But, until now, this theory had been relegated to fringe status among election law scholars, and Bacot says for good reason.

“Just on its face it violates the basic tenet of American democracy where you have checks and balances,” he says. “That’s why we have the triumvirate of the courts, the legislature and the executive. They each can check each other. Well, that just knocks out two of the other branches.”

In September, the Conference of Chief Justices — a bipartisan group made up of the highest judicial officer in each of the 50 states — filed a brief in the U.S. Supreme Court urging the justices to reject the theory. Bacot calls it a highly unusual move for the Conference, but an understandable one given the stakes involved.

“Because the consequences of that thing — you could essentially become a Balkanized country where you have certain states that are hanging together legislatively because there’s not going to be any kind of check on their power,” says Bacot. “And that’s a scary thought.”

For Bacot, North Carolina’s current midterm landscape is Exhibit A for the importance of checks and balances. But he adds that today’s Supreme Court has at least four conservative justices who are believed to be sympathetic to the independent state legislature theory.

As of this writing, Chief Justice John Roberts and Justice Amy Coney Barrett have yet to signal their leanings.

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