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North Carolina case headed to Supreme Court could introduce ‘chaos’ into elections, opponents say

Dec. 6, 2022 Updated Tue., Dec. 6, 2022 at 12:58 p.m.

The U.S. Supreme Court in Washington, D.C.    (DANIEL SLIM/AFP/Getty Images North America/TNS)
The U.S. Supreme Court in Washington, D.C.   (DANIEL SLIM/AFP/Getty Images North America/TNS)
By Will Wright The News & Observer

RALEIGH, N.C. — Though the Moore v. Harper case going before the U.S. Supreme Court on Wednesday focuses on redistricting, opponents of North Carolina lawmakers say the independent state legislature theory could open a morass of chaos in elections.

Opponents foresee potential problems with recounts in federal elections, voter ID laws, differences in the time and place of federal versus state elections and other scenarios likely to hamper voter participation. But the scope of potential consequences remains wildly unclear. It will depend not just on which side the court agrees with, but with how the majority of justices write their opinion and how state legislatures react.

“The real concern I think has to be some sort of unbridled powers that the legislatures would have in this context,” said Bob Orr, a former North Carolina Supreme Court justice who opposes the lawmakers’ argument. “There would be no checks or balances, or minimal checks and balances.”

Basics of the case

The case centers on whether state courts should have the authority to intervene in how state legislatures draw maps for federal elections. The North Carolina Supreme Court imposed the congressional map used this year after it found the legislature’s was unconstitutional.

North Carolina Republican legislative leaders like House Speaker Tim Moore argue state courts shouldn’t be able to intervene in the drawing of congressional election maps. But opponents say their arguments — called the independent state legislatures theory — could give lawmakers wide authority in administering the nuts and bolts of federal elections.

It could allow lawmakers to write separate rules for federal elections than for state and local elections and remove state courts’ ability to intervene. Separate rules for those elections “would introduce chaos into the conduct of the election,” former election administrators wrote in a brief filed with the court. They include Gary O. Bartlett, former executive director of the North Carolina State Board of Elections; Linda H. Lamone, the current elections administrator for the state of Maryland; and Conny B. McCormack, a former election official in California and Texas.

“If this Court were to decide that state legislatures have exclusive authority to set the rules in federal elections, and that federal courts are the arbiters of what those state rules mean and how they apply in federal races, the consequences would be profound,” the administrators wrote in October.

Lawmakers argue in court briefs a constitutional provision called the Elections Clause gives them the explicit authority to regulate federal elections. The clause says the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” but Congress can alter those regulations.

Because the U.S. Constitution trumps local and state law, lawmakers argue this clause holds the answer to the arguments over their authority.

“Because the North Carolina legislature’s authority to regulate federal elections is commissioned by the federal Constitution, it is no more subject to the limits in North Carolina’s constitution than to those in California’s,” lawmakers wrote in a court brief.

Unpacking potential ‘chaos’

In March, the North Carolina State Board of Elections objected to state lawmakers’ arguments by outlining potential problems if the lawmakers’ theory comes to fruition.

Under the current system, elections boards in North Carolina regulate the “times, places, and manners” of all elections. In the November election, for example, regulations in voting for U.S. Senate were the same as for county commissioners.

The time and place of the elections are also the same, meaning people cast ballots for congressional races in the same voting booth as local and state ones.

Under the independent state legislatures theory, the state Board of Elections claims, those uniform regulations could be upended.

Voter ID laws could apply to federal elections but not state ones; recount rules could change depending on the race; and a myriad of other scenarios could change rules depending on the election and which court hears the case.

What if the legislature passed a law preventing people convicted of a felony from voting until they’ve served their full sentences, including any post-release probation, attorneys for the North Carolina Board of Elections asked in a court brief? Now, a state court could strike the law down. In fact, earlier this year it did, allowing many people convicted of felonies to vote in the November election. Under the independent state legislatures theory, the state court’s decision wouldn’t apply to federal elections, the elections board wrote.

That would place an extreme burden on elections officials, requiring them to figure out how to allow those people to vote only in state and local elections but not in federal ones, the State Board of Elections wrote.

In this case, the theory would “necessitate the complete severance of federal elections and voter registration systems from state and local elections and systems moving forward,” they wrote.

Lawmakers dismissed the claims their proposed system would disrupt election processes.

State and local officials “concerned about the ‘havoc’ caused by holding federal and state elections under different rules … can present those concerns to state legislatures — the appropriate forum for these types of public-policy arguments,” they wrote in a brief.

They added state legislatures “have had the authority to impose different federal and state election regimes since the Founding,” but have declined to do so. There is no evidence that would suddenly change, they wrote.

‘Time, place and manner’

In another example, elections officials pointed to early voting. Under the current system, state and county elections boards determine the number and location of early voting sites. Moving that authority for federal elections to the legislature — because it deals with the time, place and manner — could result in separate times and locations for those sites.

The result “would upend how elections work in states across the country,” the State Board of Elections wrote.

Others argue even broader implications.

A group called the Lawyers’ Committee for Civil Rights Under Law wrote state courts play a vital role in protecting the right to vote for racial minorities. If elections procedures are handed to legislatures and can only be checked by federal courts, those rights could more easily be infringed, they wrote.

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