Supreme Court hears arguments on voting rights case

The US Supreme Court justices pose for a group portrait in October. In the front row, from left, are Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan. Behind them, from left, are Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.

The Supreme Court seemed open to arguments made by North Carolina Republican lawmakers, suggesting that state courts and other state entities have a more limited role in reviewing election rules established by state legislatures when it comes to federal elections.

Although the conservative justices appeared to embrace versions of a long-dormant legal theory that would allow only some constraints on state legislatures —?it was unclear what the exact contours of the court’s final decision would be.

After three hours of arguments it appeared that Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett could ultimately determine the breadth of the decision and how elections will change going forward. At one point, Roberts seemed to suggest a middle ground position.

He suggested that if a state supreme court is crystal clear with concrete provisions on what is allowed, a legislature would have to adhere to those state constitutional limits. Other justices floated other possible standards.

For their part, liberals told a lawyer for the lawmakers that his position in the case would upend electoral politics, cause chaos on the ground and embolden state legislatures to act without judicial oversight.

And Justice Sonia Sotomayor charged the lawyer with “rewriting history.”

Arguments in the?Supreme Court’s blockbuster election rules case played out for more than three hours on Wednesday as the justices examined claims from the North Carolina GOP legislature, which argues that state constitutions and state courts have little or no authority to impose limits on how state legislatures craft their rules for federal elections.

The controversial “independent state legislature” theory is being used by Republican lawmakers to argue that state courts could not redraw the congressional map the legislature sought to enact in 2021.

A version of theory was promoted by allies of former President Donald Trump during their attempts to overturn the 2020 presidential election.

Wednesday’s case arises out of dispute over whether the congressional map was a partisan gerrymander so extreme that it ran afoul of the state’s constitution. But it has implications for all kinds of election rules and the ability of state courts to interpret them.

Here are key takeaways from Wednesday’s oral arguments:

Key swing votes appear skeptical of the maximal version of the Republicans’ arguments: North Carolina’s GOP legislature appears to be short of five votes it would need to get a Supreme Court ruling that adopted the most aggressive version of their arguments.

Justices Brett Kavanaugh and Amy Coney Barrett asked questions suggesting skepticism of the maximal version of the independent state legislature theory.

Barrett seemed troubled by the distinction lawmakers were trying to make between non-legislative state entities being able to weigh in on procedural matters around how federal elections were run versus the substantive matters around elections being out of those entities reach. Kavanaugh, meanwhile, said he thought the legislature was overreaching in how it was relying on a concurrence from then Chief Justice William Rehnquist in the 2000 Bush v. Gore case.

Chief Justice John Roberts also said that concession made by the legislature’s lawyer – who said under their theory, the governor can play a role by vetoing election rules – had undermined the Republicans’ case.

A narrow ruling in legislature’s favor still possible: Those key swing votes however asked other questions that suggested that they could rule in North Carolina’s favor, however in a way that avoided blessing the idea that state constitutions could never provide a check on state election rules.

Roberts asked the legislature’s lawyer, David Thompson, whether the problem with how North Carolina courts handled the congressional map is that the state courts were relying on state constitution provisions that were too vaguely worded.

“If they had a more precise articulation of what the limits were that they were going to apply, whether it’s going to be a particular percentage of gerrymandering, departure or something more substantive, is it the problem that they’re just interpreting something that gives them free rein or is that not a consideration?” Roberts asked.

Kavanaugh and Barrett asked questions later in the hearing – including some posed to lawyers for the legislature’s opponents in the case – that seemed to play with idea.

Thompson, for what it’s worth, seemed to resist that kind of ruling. He called that the “back up” problem with what the state courts did, but held onto the idea that the state courts had no authority to use the state constitution to knock down the redistricting plan.

Read more takeaways here.

Arguments in the Supreme Court’s election rules case played out for more than three hours on Wednesday.

Bill Hennessy, CNN’s regular Supreme?Court?sketch?artist, captured scenes from inside the courtroom:

David Thompson, representing the North Carolina Republicans, presents before the Supreme Court on Wednesday.

Neal Katyal, argues on behalf of voting rights groups and individual voters.

US Supreme Court justice Clarence Thomas listens to arguments with fellow justices on Wednesday.

Donald Verrilli argues on behalf of North Carolina before the Supreme Court justices.

US Solicitor General Elizabeth Prelogar argues on behalf of the Biden administration, which opposes the independent state legislature theory that the GOP-led North Carolina legislature is promoting.

Elizabeth Prelogar appears before a Senate Committee on the Judiciary in 2021.

US Solicitor General Elizabeth Prelogar is now arguing on behalf of the Biden administration, which opposes the independent state legislature theory that the GOP-led North Carolina legislature is promoting.

She warns that adopting the state legislature’s arguments would lead to federal courts being flooded with lawsuits around elections.

The US Supreme Court building on June 27.

Nobody is debating the importance of the issue the Supreme Court is debating today – no less than the future of the democratic process, some argue.

But as we enter hour three, if you think that oral arguments are taking a really, really, really long time these days, you’re right.

Blame the Covid-19 pandemic. Before 2020, oral arguments were generally fairly tight one-hour sessions (longer if a case was combined or the court otherwise planned). Speed and brevity were valued, CNN Senior Supreme Court Analyst Joan Biskupic has said.

During the pandemic, the justices held oral arguments over the phone, and the method was changed so each of the nine justices were allowed to ask question in order. Many of them went over time, as did the lawyers at the other end of the phone line. But the format had the advantage of ensuring that no justice was elbowed out of the Q-and-A.

But since returning to the courtroom, the old order has not been restored. Instead, while the justices have returned to their old free-for-all format, they’ve added a second round or gone into a third.

And since none of the justices are showing any signs of cutting back in sharing their questions and views, it seems like oral arguments that go on for 90 minutes or two hours — or more —?are the new normal.

Read more here.

Justice Brett Kavanaugh and Justice Amy Coney Barrett.

Justices Brett Kavanaugh and Amy Coney Barrett both asked questions of Neal Katyal that hinted they were thinking through a narrow ruling in the legislature’s favor that stopped well short of adopting the independent state legislature theory.

Such a ruling was previously floated in questions from Chief Justice John Roberts, who suggested that the problem with how North Carolina courts handled the congressional map is that the state courts were relying on too vague of provisions in the state constitution.

Kavanaugh pinned Katyal down to confirm that his clients weren’t suggesting that federal courts were never allowed to second guess a state court’s interpretation of a state constitution. Katyal emphasized that the standard for federal courts to do so is “sky high.”

Barrett picked up on Kavanaugh’s question, by equating the Election Clause to how the US Constitution’s Due Process Clause puts some limits on how state law treats legal questions about property.

Donald Verrilli speaks at the Oxford Union in 2017.

Donald Verrilli, who is representing the North Carolina executive branch officials opposing the legislature in the case, is now arguing.

Verilli served as a US solicitor in the Obama administration.

The conservative justices who have been the most open about their inclination towards the independent state legislature theory are pushing back on the arguments for why it should not be adopted.

Justice Clarence Thomas repeatedly suggested that, because the Election Clause — the US Constitutional provision key to his case — deals with the federal congressional elections, state courts can be told to stay out of interpreting those rules.

Justice Samuel Alito posed a series of hypotheticals meant to test the limits of the arguments being put forward by Neal Katyal, the lawyer for opponents to the North Carolina legislatures. The hypotheticals looked at different scenarios where a state supreme court would commander the job of congressional map drawing from state legislatures.

Justice Neil Gorsuch quizzed Katyal on the possibility that state constitutions would mandate partisan gerrymander or adopt the pre-Civil War understanding that an African-American counts for three-fifth of person.

Thomas, Alito and Gorsuch — over the course of dissent and statements written in the 2020 election litigation — showed themselves to be very sympathetic to the theory. The key question is whether they can get two others to join them.

People vote at a polling location in Fuquay-Varina, North Carolina, on November 8.

When she was questioning the legislature’s lawyer David Thompson, Justice Elena Kagan zeroed on in the “consequences” if the Supreme Court were to adopt the independent state legislature theory.

She said doing so could allow state legislatures to get rid of voter protections in a way that would run afoul of their state constitutions. She also raised the possibility the state legislatures would be able to insert themselves into the certification of elections.

She added: “And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”

There were fears in the 2020 election that Donald Trump-aligned state legislatures would use the “independent state legislature” theory to interfere with the certification of President Joe Biden’s win in battleground states. It’s worth noting that, in the presidential election context, the independent state legislature theory relies on a separate constitutional provision from the clause at issue in the North Carolina case.

Chief Justice John Roberts asked a question that hinted that he was looking for an offramp that would allow the Supreme Court to rule in the GOP legislature’s favor without blessing the full independent state legislature theory.

Roberts — who is seen as more of an institutionalist than the five justices to his right — has been known in recent years to look for narrow ways out of a case that avoid making major changes to case law. For instance, in the blockbuster abortion case last term, Roberts said that he would vote to uphold Mississippi’s 15-week abortion ban but he disagreed with the majority’s move to reverse the Roe precedent outright.

Roberts on Wednesday asked whether the problem in how the North Carolina state courts handled the legislature’s map is that the courts were relying on a vague “free elections” standard in the state constitution, rather than a specific limit on partisan gerrymandering.

David Thompson, who is representing the North Carolina Republicans, said that is their “back up” problem with what the state courts did in their case, but he held onto the idea state constitutions could not impose a substantive limit on what election rules a legislature can enact.

Justice Sonia Sotomayor followed up later in the hearing with a point that seemed to push back at the idea that the state courts erred by using a vaguely worded “free elections” clause in the state constitution to strike down the congressional map.

She brought up the somewhat ambiguous language in the US Constitution and federal statute that federal courts interpret all the time. She asked Thompson how what the North Carolina courts did was any different than what federal courts typically do.

Former President George W. Bush and former first lady Laura Bush appear at a campaign rally in Chattanooga, Tennessee, in 2000.

As the 2000 Supreme Court case of Bush v. Gore — which handed George W. Bush the presidential election — comes up in Wednesday’s oral arguments, it’s worth noting that three of the current justices helped Bush in some manner when they were in private practice.

Chief Justice John Roberts flew to Florida in November 2000 to assist Bush’s legal team. He helped prepare the lawyer who presented Bush’s case to the Florida state Supreme Court and offered advice throughout.

Justice Brett Kavanaugh helped the Bush legal team on efforts related to recounts in Volusia County, Florida.

In an interview with CNN in Washington after the justices had heard oral arguments but before they ruled, Kavanaugh said the justices were concerned about “the arbitrary, standardless nature of the recount process in Florida.” He dismissed a question about political differences, saying, “I don’t think the justices care if it’s Bush v. Gore, or if it were Gore v. Bush. What they care about is how to interpret the Constitution and what are the enduring values that are going to stand a generation from now.”

Justice Amy Coney Barrett also went to Florida during the recount controversy. She told the Senate Judiciary Committee the law firm where she was working represented Bush and she visited Florida for a week, but did not continue on the case after she returned to Washington.

Of the nine current justices, only Justice Clarence Thomas remains on the bench. He voted with the 5-4 majority to end the Florida recount and hand Bush the presidency.

Watch Kavanaugh talk Bush v. Gore case in 2000:

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Neal Katyal speaks to members of the media outside the Supreme Court in 2018.

Neal Katyal, a former acting US solicitor general who is representing some of the legislature’s opponents, is arguing now. He is representing the voting rights groups that challenged in state court the initial congressional map the North Carolina Republicans drew.

Justice Elena Kagan stands during a group photo at the Supreme Court in 2021.

Justice Elena Kagan brought up three US Supreme Court cases where the majority seemed to sanction the idea that entities other than the state legislature can have a role to play in setting election rules.

One of those cases was an Arizona case where the court upheld the state’s independent redistricting commission. Another was the recent partisan redistricting case, where the Supreme Court conservative majority said that federal courts had no role in policing extreme partisan gerrymanders, with an opinion that nodded to the ability of state constitutions to limit such gerrymanders.

“In all recent cases, we’ve said, ‘Of course, state courts applying state constitutions typically constrain state legislatures, when they redistrict, when they enact election laws,’” the liberal justice said.

David Thompson, who is representing the North Carolina Republicans seeking to reinstate their congressional map, tried to argue that the question before the court now was not directly in front of the court for those previous questions. Kagan shot back that the state legislature has been relying on concurrences from a Supreme Court case concerning the 2000 election, where the court also wasn’t asked to review the independent state legislature question directly.

Justice Amy Coney Barrett testifies in front of the Senate Judiciary Committee in 2020.

In some of their briefings, the Republican lawmakers have suggested there’s a distinction between procedural checks on a legislature’s interpretation of election rules versus substantive checks.

Justice Amy Coney Barrett asked where the legislature is deriving that distinction — if not from the constitution itself.

Her question suggests some skepticism of that distinction. Barrett’s views on the independent state legislature theory are a mystery, as she was not on the high court during the pre-2020 election litigation when the issue came up.

Barrett went on to question how the lawmakers are framing the purpose of the Election Clause, the US constitutional provision that North Carolina state legislature says gives them the authority to enact election rules that cannot be struck by state courts under the state constitution. The Election Clause also says that Congress can write election rules for federal congressional elections.

Barrett told Thompson says she didn’t read that clause has delegating power to the states, but perhaps rather establishing that Congress had the ability to override state laws.

Chief Justice John Roberts arrives in the House of Representatives chamber in March.

Chief Justice John Roberts, a potential swing vote in the case that could determine how federal elections are run in the future, asked the attorney for the GOP North Carolina legislature a question testing the limits of the lawmakers’ theory about?the independent state legislature doctrine.?

He asked about the governor’s ability to veto measures passed out of the legislature and got Thompson to concede that the governor retains that authority to veto election legislation.

Roberts went on to suggest that concession might undermine their case. The chief justice has not spoken out on his thoughts of the “independent state legislature” theory, unlike four of his fellow conservatives.

People wait in line outside the US Supreme Court to hear oral arguments in the Moore v. Harper case on December 7.

The Supreme Court has begun its hearing in the Moore v. Harper case.

Kicking off the arguments is attorney David Thompson, who is representing the North Carolina Republicans seeking to reinstate their congressional map.

The “independent state legislature” theory the Supreme Court is considering Wednesday is an interpretation that posits that state legislatures should have primary — and perhaps exclusive —?authority for setting the rules of federal elections, unless Congress has weighed in.

Proponents of the theory say that, under the doctrine, federal courts still have a role to play to ensure federal law and the US constitution are not violated by a state’s election rules.

Voting rights groups say that should the Supreme Court adopt it, state legislatures would enjoy absolute authority without judicial oversight, even perhaps choosing their desired election winners.

One example is how state courts — while citing their state constitutions?— issued rulings in 2020 that made mail voting more accessible for the Covid-19 pandemic. It also raises questions about the discretion state executive branch officials and local authorities have in carrying out state election law.?

Versions of the “independent state legislature” doctrine manifested in arguments made in 2020 election lawsuits, particularly?in cases where conservatives challenged the counting of votes that were cast under election rules set out by state courts for the pandemic, rather than by the legislature.?

During that litigation, several members of the US?Supreme Court’s conservative wing signaled their openness to the theory. But the high court did not take up a case that would give the justices a full review of the arguments until the North Carolina Republicans brought the redistricting case to the justices.

Read more here.

The US Supreme Court justices pose for a group portrait in October. In the front row, from left, are Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan. Behind them, from left, are Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.

Earlier this year, a 5-4 Supreme Court ruled against the GOP challengers and declined to block the court-ordered map for new congressional districts on an emergency basis.

At the time, Justice Samuel Alito, writing for Justices Clarence Thomas and Neil Gorsuch, said that he thought the lawmakers in the case will ultimately prevail.??

Critically, Justice Brett Kavanaugh said that he agreed with Alito that the underlying Elections Clause questions were important.?

“The issue is almost certain to keep arising until this Court definitively resolves it,” Kavanaugh wrote. Yet he ultimately voted against the lawmakers cautioning that it was too close to the impending midterms to change the map.??

Chief Justice William Rehnquist addresses a meeting of the Federal Justices Association in 2001.

The seeds of Wednesday’s Supreme Court oral arguments came 22 years ago when the high court settled the 2000 election in favor of George W. Bush over Al Gore.

The ruling was 5-4 in Bush’s favor, but then-Chief Justice William Rehnquist wrote a separate opinion acknowledging that while the justices usually defer to state courts on issues of state law — federal elections are an exception.

During the Bush v. Gore oral arguments in December 2000,?Justice Anthony Kennedy warned of the dangers to democracy if state constitutions were bypassed in elections controversies.

“It seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter,” said Kennedy, a centrist conservative, “and to say that the legislature of the state is unmoored from its own constitution, and it can’t use its courts … it seems to me a holding which has grave implications for our republican theory of government.”

Kennedy was part of the 5-4 majority that sided with Bush.

Keep reading here

J. Michael Luttig testified in June before the House select committee investigating the 2021 Capitol attack.

Retired Judge J. Michael Luttig is a conservative luminary who surprised many by becoming co-counsel in the redistricting case, joining forces with North Carolina and voting rights groups against the GOP lawmakers.

Luttig played a critical role in the run up to the Jan. 6, 2021, US Capitol attack, advising then-Vice President Mike Pence’s legal team. He sees the current case as an extension of former President Donald Trump’s efforts to overturn the election.

In a brief on behalf of Common Cause, the North Carolina League of Conservation Voters and the Southern Coalition for Social Justice, Luttig argued that the Republicans’ interpretation of the Elections Clause “flouts” the Constitution’s most fundamental premise: “that a government’s power derives from ‘We the People’ and is limited by the constraints the people impose on their government.”

“Conferring power on the state ‘Legislature’ to regulate congressional elections does not nullify state constitutional limits on that power,” Luttig wrote.

Read more here.

Supreme Court Justice Amy Coney Barrett attends a group photo session with the rest of the court in October.

In court on Wednesday, all eyes will be on Justice Amy Coney Barrett to see which way she is leaning when it comes to the Independent State Legislature doctrine.

Former President Donald Trump’s appointee has yet to opine publicly on the theory, and she notably did not join her conservative colleagues Samuel Alito, Neil Gorsuch and Clarence Thomas in an earlier phase of the case when they expressed interest in the case.

At the time, Justice Brett Kavanaugh also noted that the doctrine raises important questions.

It only takes four justices to agree to take up a case, but you need a majority to write a binding opinion. Barrett, so far, has said nothing, and she may be the key.?

From left, Donald Verrilli, Neal Katyal and Elizabeth Prelogar

Wednesday’s Supreme Court oral arguments will feature the legal muscle of three solicitors generals (two former and one current) who are joining forces to counter the arguments put forward by the Republican North Carolina lawmakers.

Don Verrilli is a veteran of the Obama administration and will argue on behalf of North Carolina, defending the state’s Supreme Court decision.

Neal Katyal, who served as acting solicitor general under Obama, will argue on behalf of voting rights groups and individual voters.

Solicitor General Elizabeth Prelogar will argue on behalf of the Biden administration in support of North Carolina.