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home : opinion : opinion August 16, 2022

7/13/2022 6:36:00 AM
Supreme Court Will Consider NC Redistricting

L. Wayne Howard
Staff Writer

The recent decision on Roe v Wade by the US Supreme Court of 2022 does much more than reverse an earlier decision by the Court that had stood for fifty years. It also signals that this Court appears willing, perhaps eager, to erase precedent as policy for deciding subsequent cases involving identical or similar facts, or similar legal issues. What is more disturbing is that the current Court also appears ready to erase another--even longer standing--Supreme Court doctrine.

If you think the US Supreme Court reinterpreting the 14th Amendment from a previous Supreme Court decision may have much more serious consequences than making abortions illegal in many states, what the Court may decide in a North Carolina case could have an even more serious effect.

In this case, it's not an Amendment, but the very first Article of the US Constitution that will be discussed. The Constitution gives state legislatures the power to control elections for Congress and for President and a narrow literal opinion could change future elections by eliminating the Doctrine of Judicial Review, established in 1803 by the Supreme Court of that era.

Many legal scholars are warning that depending on how the Court rules, it could lead to more attempts by Republican state lawmakers to subvert elections, including the 2024 Presidential election.

Four of the five conservative Justices--Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh--have signaled they're interested in the theory that Article I gives state legislatures absolute and total control over federal elections in their state.

The case involves a suit by the Republicans in the North Carolina General Assembly, who are asking the Court to overturn a decision by the Democratic majority North Carolina Supreme Court that threw out their original redistricting proposal and led to the creation of another (the one now in use for the 2022 election).

Partisan gerrymandering was definitely involved in the original redistricting proposal. Had it been allowed to stand, it would almost certainly have meant that 11 of North Carolina's 14 Congresssional districts would have gone Republican in this year's election. Republican David Lewis, chairman of the NC House Committee on Redistricting, offered: "I do not believe it's possible to draw a map with 11 Republicans and 2 Democrats."

Partisan gerrymandering is nothing new. The Democrats did it in our state when they were in control; now the Republicans were trying to do the same. Thanks to modern technology and better information, they were able to do it with even more divisiveness. The map they chose is more extreme than 99 percent of all the possible maps that could have been drawn.

The Democrats took the proposed plan to court, and the State Supreme Court threw it out. The map finally approved makes it likely that at least four and more likely five of North Carolina's Congressional districts will go Democrat this year. There is one, perhaps two, district that may be considered a 'toss up.' The other nine (or eight) are almost certain to go Republican.

Not satisfied, the Republicans took the matter to the federal courts, and now it is to be decided by a US Supreme Court that has already rejected precedent and may now reverse another long-standing doctrine.

If the Court adopts the "independent state legislature" doctrine, a legal theory that the Constitution gives state legislatures control over running federal elections, with oversight only from Congress, it might not only lead to another redistricting in North Carolina, but has other more serious implications for the election of 2024.

For example, it the legislatures in states were said to be totally in control of federal elections without any of the aforementioned judicial review; state legislatures dissatisfied with the results of a Presidential election (like the one in 2020) would be within their right to void its results and appoint Electors of their choosing to make the decision of the Presidential election.

Like Roe v Wade, this is a revisiting of a previous decision by the Supreme Court. In 2004, the Court dismissed a similar case by a 5-4 vote. Of course, the makeup of the Court then and now are quite different.

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