In November 2021, the North Carolina General Assembly created a new congressional voting map. Shortly thereafter, a group of voters and nonprofit organizations challenged the map in court, arguing that it was an unconstitutional partisan gerrymander. In February 2022, the North Carolina Supreme Court ruled that the state could not use the new map in the 2022 elections. That same month, state legislators filed an emergency request in the U.S. Supreme Court to stay the injunction before the state’s primary elections in May, but the Court denied the request. The Court decided to hear the case after North Carolina Representative Timothy K. Moore filed a petition for a writ of certiorari in March 2022, which the Court granted in June.

On October 26, 2022, CAC filed an amicus brief in support of those challenging the new voting map. Our brief made three main points.

First, our brief argued that the Elections Clause does not prevent a state court from enforcing state constitutional limitations that constrain the state legislature’s authority over federal elections. In our constitutional scheme, state legislatures are creatures of the Constitution, not independent of it. The Constitution does not prevent state courts from vindicating voting rights guarantees enshrined in state constitutions to limit state regulation of congressional elections.  Indeed, state judicial review was both the legal backdrop and model for federal judicial review.  The so-called independent state legislature theory has no basis in the text and history of the Constitution.

Second, not a shred of Founding-era evidence supports the idea that state legislatures, when regulating federal elections, should be free from state constitutional restraints that would otherwise apply to their enactments. On the contrary, the Elections Clause was adopted because the Founding generation was deeply concerned that state legislatures would manipulate the electoral process for partisan gain.

Third, our brief explained that state constitutions have consistently regulated federal elections since the Founding. Numerous Founding-era state constitutions regulated congressional elections. No one in the Founding era suggested that these state constitutional provisions were unconstitutional because state legislatures possessed unchecked lawmaking power over the mechanics of federal elections. And since the Founding, state constitutions have regulated nearly every aspect of federal elections. The reality is that, for more than two centuries, state constitutions have regulated federal elections in a manner incompatible with the flawed view that state legislatures possess exclusive constitutional authority.

On June 27, 2023, the Supreme Court issued its decision, recognizing that the so-called independent state legislature theory has no basis in the Constitution’s text and history. In his opinion for the Court, Chief Justice Roberts echoed our brief, affirming that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”